Volume I - Annexes 1-36

INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION
OF THE FINANCING OF TERRORISM AND OF THE INTERNATIONAL CONVENTION
ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
(UKRAINE V. RUSSIAN FEDERATION)
VOLUME I OF THE ANNEXES TO THE REPLY
SUBMITTED BY UKRAINE
29 APRIL 2022
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TABLE OF CONTENTS
OF THE VOLUME I OF THE ANNEXES TO THE REPLY
I. WITNESS STATEMENTS AND EXPERT REPORTS
A. ICSFT
1. Expert Reports
Page
Second Expert Report of Lieutenant General Christopher Brown (21
April 2022)
1
Expert Report of Catherine Gwilliam and Air Vice-Marshal Anthony
Sean Corbett (21 April 2022)
79
B. CERD
1. Witness Statements
Page
Second Witness Statement of Refat Chubarov (21 April 2022) 171
Witness Statement of the Metropolitan of Simferopol and Crimea
Klyment (29 March 2022)
183
2. Expert Reports
Page
Second Expert Report of Sandra Fredman (21 April 2022) 197
Second Expert Report of Paul R. Magocsi (14 April 2022) 227
Expert Report of Martin Scheinin (14 April 2022) 261
II. ICSFT ANNEXES
A. UKRAINIAN GOVERNMENT DOCUMENTS
Page
Ministry of Interior of Ukraine Order No. 317 (14 April 2014) 293
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Search and Seizure Report, drafted by Senior Lieutenant of Justice
O.B. Butyrin, Senior Investigator, Investigations Department of the
Directorate of the Security Service of Ukraine in the Kharkiv Region
(16 November 2014)
299
Report on Examination of Things Seized from Marina Kovtun,
drafted by Senior Lieutenant of Justice D.S. Gnatushko, Senior
Investigator, Investigations Department of the Directorate of the
Security Service of Ukraine in the Kharkiv Region (16 November
2014)
305
Report of Presentation of a Person for Identification by Photos,
drafted by Major of Justice O.S. Zagumennyi, Senior Investigator,
Investigations Department of the Directorate of the Security Service
of Ukraine in the Kharkiv Region (18 November 2014)
311
Report of Presentation of a Person for Identification by Photos,
drafted by Senior Lieutenant of Justice O.B. Butyrin, Senior
Investigator, Investigations Department of the Directorate of the
Security Service of Ukraine in the Kharkiv Region (19 November
2014)
315
Report of Presentation of a Person for Identification by Photos,
drafted by Lieutenant Colonel I.V.Mezionov, Special Investigator,
Investigations Department of the Directorate of the Security Service
of Ukraine in the Kharkiv Region (22 November 2014)
321
Record of Review, drafted by O.V. Martyniuk, Senior Investigator of
the Security Service of Ukraine (16 January 2015)
327
Security Service of Ukraine, ATO Regulation Governing Checkpoints
(22 January 2015)
341
Report No. 1 of Presentation of a Person for Identification by Photos,
drafted by Senior Lieutenant K.O. Pidgirnyi, Senior Investigator,
Investigations Department of the Directorate of the Security Service
of Ukraine in the Kharkiv Region (26 February 2015)
349
Report No. 2 of Presentation of a Person for Identification by Photos,
drafted by Senior Lieutenant K.O.Pidgirnyi, Senior Investigator,
Investigations Department of the Directorate of the Security Service
of Ukraine in the Kharkiv Region (26 February 2015)
355
Report No. 3 of Presentation of a Person for Identification by Photos,
drafted by Senior Lieutenant K.O. Pidgirnyi, Senior Investigator,
Investigations Department of the Directorate of the Security Service
of Ukraine in the Kharkiv Region (26 February 2015)
361
Ruling Granting Recording of V. Dvornikov’s Conversations, drafted
by Investigating Judge R.M. Piddubnyi, the Court of Appeal in
Kharkiv District (27 February 2015)
367
Ruling Granting Recording of V. Tetutskiy’s Conversations, drafted
by Investigating Judge R.M. Piddubnyi, the Court of Appeal in
Kharkiv District (27 February 2015)
371
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Report No. 3 of Presentation of a Person for Identification by Photos,
drafted by Captain of Justice A.O. Prosniak, Investigator,
Investigations Department of the Directorate of the Security Service
of Ukraine in the Kharkiv Region (5 March 2015)
375
Report No. 1 of Presentation of a Person for Identification by Photos,
drafted by Captain of Justice A.O. Prosniak, Investigator,
Investigations Department of the Directorate of the Security Service
of Ukraine in the Kharkiv Region (5 March 2015)
379
Report No. 2 of Presentation of a Person for Identification by Photos,
drafted by Captain of Justice A.O. Prosniak Investigator,
Investigations Department of the Directorate of the Security Service
of Ukraine in the Kharkiv Region (5 March 2015)
383
Expert Conclusion No. 5, drafted by the Forensic Research Center,
Ministry of Internal Affairs of Ukraine, Main Directorate of the
Ministry of Internal Affairs of Ukraine in Kharkiv Region (16 March
2015)
387
Ukrainian Border Guard Service Letter No. 51/442 to Major of
Justice A.V. Ryzhylo, Senior Investigator, Investigations Department
of the Directorate of the Security Service of Ukraine in the Kharkiv
Region, dated 16 March 2015
391
Report of Identification of Dvornikov’s Car, drafted by Senior
Lieutenant of Justice K.O. Pidgirnyi, Senior Investigator,
Investigations Department of the Directorate of the Security Service
of Ukraine in the Kharkiv Region (19 March 2015)
397
Expert Conclusion No. 17 drafted by the Forensic Research Center,
Ministry of Internal Affairs of Ukraine, Main Directorate of the
Ministry of Internal Affairs of Ukraine in Kharkiv Region (20 March
2015)
401
Expert Conclusion No. 16, drafted by the Forensic Research Center,
Ministry of Internal Affairs of Ukraine, Main Directorate of the
Ministry of Internal Affairs of Ukraine in Kharkiv Region (20 March
2015)
405
Expert Opinion No. 1975, drafted by the Forensic Research Center in
Kharkiv Named After M.S. Bokarius, Ministry of Justice of Ukraine
(1 April 2015)
409
Ukrainian Border Guard Service Letter No. 51/680 to Lieutenant
Colonel I.V. Selenkov, Deputy Head of the Investigations
Department, Directorate of the Security Service of Ukraine in the
Kharkiv Region, dated 16 April 2015
415
Expert Opinion of Forensic Psychological Examination Commission
No. 1632/222, drafted by the Forensic Research Center in Kharkiv
Named After M.S. Bokarius, Ministry of Justice of Ukraine (20
February 2017)
421
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Expert Opinion No. 8-ZVZ drafted by the Kharkiv Centre for
Forensic Science and Investigations, Ministry of Internal Affairs of
Ukraine (21 February 2017)
427
Expert Opinion of Forensic Psychological Examination Commission
No. 1793/223, drafted by the Forensic Research Center in Kharkiv
Named After M.S. Bokarius, Ministry of Justice of Ukraine (21
February 2017)
433
Expert Opinion of Forensic Psychological Examination Commission
No. 1794/224, drafted by the Forensic Research Center in Kharkiv
Named After M.S. Bokarius, Ministry of Justice of Ukraine (22
February 2017)
439
Case No. 645/3612/15-k, Judgment of Conviction and Sentencing of
28 December 2019 of the Frunze Municipal Court of the City of
Kharkiv
445
Intentionally Omitted
Annex 1
Second Expert Report of Lieutenant General Christopher Brown
(21 April 2022)
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INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE
SUPPRESSION OF THE FINANCING OF TERRORISM AND OF THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL
FORMS OF RACIAL DISCRIMINATION
between
UKRAINE
and
THE RUSSIAN FEDERATION
SECOND EXPERT REPORT OF LIEUTENANT GENERAL CHRISTOPHER BROWN
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i
TABLE OF CONTENTS
I. Summary ................................................................................................................. 1
II. Shelling of Civilian Checkpoint Near Volnovakha — 13 January 2015 .............. 2
III. Shelling of Residential Area of Mariupol — 24 January 2015 .......................... 25
IV. Shelling of Residential Area of Kramatorsk — 10 February 2015 .................... 46
V. Shelling of Civilian Areas of Avdiivka — January to March 2017 .................... 63
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I. SUMMARY
1. I have reviewed both General Samolenkov and Colonel Bobkov’s expert
reports, as well as Chapter VII of the Counter-Memorial submitted by the Russian
Federation. My overall conclusion is that General Samolenkov’s contribution to the Russian
Counter-Memorial seeks to undermine Ukraine’s case based on tenuous hypotheses of
technical error or inevitable, and therefore lawful, collateral damage, rather than offering
plausible alternatives based on fact. Colonel Bobkov’s report is based on a limited set of
imagery that does not provide a balanced picture of events on the ground. Moreover,
Chapter VII of the Counter-Memorial draws conclusions above and beyond the underlying
analysis in its two expert witness supporting reports.1 More generally, the recurring
suggestion by the Russian Federation that Ukraine provided me with insufficient evidence2
to make valid rounded conclusions in the context of the overall fighting between the
Ukrainian Armed Forces (“UAF”) and DPR fighters is not borne out by my experience in
such cases. My experience is that collection of evidence in conflict situations is seldom
comprehensive and will inherently include witnesses’ specific perspectives of events at the
time, given ongoing attacks. But in contrast to the evidence upon which I based my
opinions, much of the reports by General Samolenkov and Colonel Bobkov is based on
academic arguments that obfuscate rather than clarify the actual situation on the ground.
2. Russia also argues that indiscriminate shelling of populated areas has
occurred on both sides.3 Such comparisons tend to be generic; there are important factual
differences; each incident merits analysis in its own right.
3. Expert Report by General Samolenkov. The overall context of the fighting
between DPR fighters and the UAF, as put forward by General Samolenkov, is interesting; it
1 Expert Report of Colonel Alexander Alekseevich Bobkov (8 August 2021) [hereinafter Bobkov
Report] (Russia’s Counter-Memorial Part I, Annex 1); Expert Report of Major General Valery
Alexeevich Samolenkov (8 August 2021) [hereinafter Samolenkov Report] (Russia’s Counter-
Memorial Part I, Annex 2).
2 See e.g., Russia’s Counter-Memorial Part I, para. 358.
3 See e.g., ibid., para. 376; see also Samolenkov Report, paras. 360–361 (covering alleged UAF shelling
opposite Avdiivka).
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2
may even shed light on specific incidents, but it cannot explain or justify the attacks in this
case from a military perspective. The imbalance of General Samolenkov’s interpretation is
evident; this report attempts to restore some equilibrium.
4. Expert Report by Colonel Bobkov. I have used imagery extensively in every
operational theatre in which I have been involved. Colonel Bobkov’s report is a thorough
analysis of specific but limited imagery. He appears to have been given clear parameters for
the scope of his analysis, much of which is peripheral, rather than being free to analyse
imagery which might have fallen out of his own assessment of the key issues. As a result, the
gaps in his analysis offer more insight than the areas he has covered. While I do not opine
on all of his specific factual conclusions related to particular images — I leave that to the
report compiled by Ms. Gwilliam and Air Vice-Marshal Corbett of Geollect (“Geollect” or the
“Geollect Report”)4 — based on my experience, some of his conclusions are subjectively
narrow to the point of imbalance.
II. SHELLING OF CIVILIAN CHECKPOINT NEAR VOLNOVAKHA — 13 JANUARY 2015
5. Common Ground Between My First Report5 and Russia.
a. The weapon system used in the attack on 13 January 2015 was BM-21
Grad firing conventional high explosive (HE) fragmentation munitions
(designated “9M22” or “M-210F”).6
b. As stated by General Samolenkov, “provided the DPR had a choice of
artillery and was targeting the checkpoint, BM-21 Grad MLRS would not
have been the most efficient weapon to use against such target.”7
6. The Wider Tactical Situation. My experience in similar situations and my
interpretation of the evidence in this case, drawing on interviews with UAF commanders in
4 Expert Report of Catherine Gwilliam and Air Vice-Marshal Anthony Sean Corbett (21 April 2022)
[hereinafter Gwilliam and Corbett Report] (Ukraine’s Reply, Annex 2).
5 Expert Report of Lieutenant General Christopher Brown (5 June 2018) [hereinafter Brown First
Report] (Ukraine’s Memorial, Annex 11).
6 Samolenkov Report, Figure 8 (Russia’s Counter-Memorial Part I, Annex 2).
7 Ibid., para. 58.
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the field at the time and the imagery provided by both Colonel Bobkov8 and Geollect,9
confirm there was no monolithic front-line in the sense of unbroken defensive positions
typical of the Western Front in the First World War. The situation in eastern Ukraine in
2015 was more fluid with dispersed combat positions able to cover the intervening open
ground and a “no-man’s-land,” typically around 3 km wide in the Volnovakha sector.
8 Bobkov Report, Figure 23 (Russia’s Counter-Memorial Part I, Annex 2).
9 Gwilliam and Corbett Report, Figure 11 (Ukraine’s Reply, Annex 2).
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Figure 1. Tactical situation in the Volnovakha sector on the morning before the attack
on the Buhas checkpoint (Bobkov Figure 23).10
10 Reproduced from Bobkov Report, Figure 23 (Russia’s Counter-Memorial Part I, Annex 1).
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Figure 2. Tactical situation in the Volnovakha sector (Geollect Figure 11).11
11 Reproduced from Gwilliam and Corbett Report, Figure 11 (Ukraine’s Reply, Annex 2).
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6
7. In an attempt to show that the Volnovakha Ministry of Internal Affairs
checkpoint (the “Buhas checkpoint”) was a legitimate target for the attack, the Counter-
Memorial conflates it12 with a UAF defensive position at Berezove,13 whereas the latter was
clearly a front-line combat position, 17 km from the former. The Buhas checkpoint was at
least 10 km behind the “no-man’s-land” on this section of the front.14 Moreover, the
presence of at least four armoured vehicles at the UAF combat position at Berezove contrasts
with the absence of armoured vehicles at the Buhas checkpoint. General Samolenkov offers
no evidence to indicate the presence of an active, offensive military combat or
reconnaissance unit operating out of the Buhas checkpoint at the time of the shelling or
otherwise.15 The suggestion that the Buhas checkpoint was an integral element of the UAF
defensive positions16 is therefore unsubstantiated and, based on the evidence I have seen,
incorrect.
8. Nature and Role of the Checkpoint. The Counter-Memorial also conflates the
Berezove combat position with the Buhas checkpoint in terms of its nature and role. The
contrast between the armoured combat vehicles at the Berezove combat position,
particularly their defensive orientation towards the DPR positions in Dokuchaevsk, and the
lack of armoured vehicles at the Buhas checkpoint17 points not only to the geographical
12 See Russia’s Counter-Memorial Part I, paras. 364–378; Samolenkov Report, para. 21 et seq.
(Russia’s Counter-Memorial Part I, Annex 2); Bobkov Report, para. 47 et seq. (Russia’s Counter-
Memorial Part I, Annex 1).
13 West of Dokuchaevsk and shown as Position 9 on Bobkov Figure 23. See Bobkov Report, Figure 23
(Russia’s Counter-Memorial Part I, Annex 1).
14 Colonel Bobkov’s Figure 23 is helpful in showing the Buhas checkpoint as the furthest from the
front-line and at least 1.9 km from any other Ukrainian positions (the nearest appear to be two
unoccupied positions, Numbers 22 and 26 in his Table 2 which interprets his imagery). See Bobkov
Report, Figure 23 (Russia’s Counter-Memorial Part I, Annex 1).
15 See Samolenkov Report, paras. 42–57 (Russia’s Counter-Memorial Part I, Annex 2).
16 See Russia’s Counter-Memorial Part I, para. 374 (drawing on Samolenkov Report, para. 42 et seq.).
17 The single BRDM-2 shown on a 25 October 2014 image, seized on by Bobkov and Samolenkov as
evidence that the Volnovakha checkpoint was taking an active role in hostilities, is very different in
both its role and protection from the tanks and infantry fighting vehicles found in the front-line.
General Samolenkov correctly describes the BRDM-2 as a “lightly armoured” vehicle, see Samolenkov
Report, para. 51 (Russia’s Counter-Memorial Part I, Annex 2), used for scouting and typically internal
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separation of these two positions as suggested above, but also to their different purposes.
The separation of administrative functions from fighting that existed in this area in January
2015 is exemplified by the contrast in the nature and role of the two positions. Checkpoints
where civilian movement can safely be controlled by internal security or police forces are
routinely separated geographically and functionally from combat forces in armed conflict
zones. The UAF combat forces at Positions 9 and 10 on Colonel Bobkov’s Figure 23 image
(Figure 1, above), at least 10 km to the northeast of the checkpoint, were providing the
military defence of the road under the command of the UAF Anti-Terrorist Operation
(“ATO”). The Kyiv-2 Battalion personnel and the Border Guard Service members based at
the Buhas checkpoint had no combat role: they were well behind both the first and second
UAF lines of defence and, as General Samolenkov acknowledges, were “Part of the Ministry
of Internal Affairs.”18 I therefore disagree with General Samolenkov’s conclusion that “the
Buhas checkpoint appears to have held an important place in the system of other
positions.”19
9. Layout and Equipment of the Checkpoint. Colonel Bobkov concludes that
“[a]s at 09:08 (UTC) on 13 January 2015, the Buhas Checkpoint was equipped and adapted
for accommodating military units. This is evidenced by trenches and fighting holes for
personnel, dug-out positions for armoured vehicles, fortified and protected observation
posts, two army tents, motor transport suitable for transporting personnel.”20 This is very
different from saying that the checkpoint took an active role in hostilities or was part of the
UAF defences. The trenches appear to be for individual protection. The “dug-out positions
security/policing roles, as shown by the image at Addendum 1, Figure 2, of his report. See
Samolenkov Report, Addendum 1, Figure 2 (Russia’s Counter-Memorial Part I, Annex 2).
18 Samolenkov Report, para. 53 (Russia’s Counter-Memorial Part I, Annex 2). General Samolenkov’s
description of the Kyiv-2 Battalion as “Part of the Ministry of Internal Affairs” is accurate. See
Ministry of Internal Affairs of Ukraine Order No. 317 (14 April 2014) (Ukraine’s Reply, Annex 8).
19 Samolenkov Report, para. 53 (Russia’s Counter-Memorial Part I, Annex 2).
20 Bobkov Report, para. 38 (Russia’s Counter-Memorial Part I, Annex 1).
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for armoured vehicles” are not sited tactically: they are sited so that vehicles could park
there, for which the earthworks provided limited protection.
Figure 3. Layout of the Buhas checkpoint (Geollect Figure 2).21
21 Reproduced from Gwilliam and Corbett Report, Figure 2 (Ukraine’s Reply, Annex 2).
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10. I visited the Buhas checkpoint in 2018. It appeared to have changed little
since 2015 and is not unlike any such installation in similarly contested areas:22 it conducts a
primarily administrative function in respect of civilian traffic; its organisation, manning and
equipment are incapable of anything more than self-defence to protect personnel working
there. It is not capable of combat operations.
11. Alleged Justification for Targeting the Checkpoint. General Samolenkov
alleges three possible reasons for targeting the Buhas checkpoint:
a. An Ongoing Artillery Campaign Against the Rear Area/Resupply. Based
on unverified social media posts concerning random alleged shellings in
the general area, General Samolenkov claims that the village of Buhas, 3
km from the checkpoint, had been shelled on 7 January 2015,23 inferring
that the 13 January 2015 shelling was part of an ongoing artillery
campaign against targets in the rear area, but neither the targets nor the
craters which would have resulted from this shelling appear to feature on
Colonel Bobkov’s analysis:
22 It conforms to the UN peacekeeping template, see U.N. Police, Peacekeeping PDT Standards for
Formed Police Units (2015), Slide 15 (Ukraine’s Reply, Annex 57), and is similar to examples from my
own experience in Northern Ireland. See The Imperial War Museums, Photographs: The British
Army in Northern Ireland 1969 - 2007, https://www.iwm.org.uk/collections/item/object/205185235
(depicting a vehicle screening checkpoint on the road to Lifford).
23 See Samolenkov Report, para. 13(e) (Russia’s Counter-Memorial Part I, Annex 2) (citing a social
media post on Vk.com).
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Figure 4: Location of shell explosion craters (as of 13 January 2015 09:06 (UTC))
(Bobkov Figure 24).24
24 Reproduced from Bobkov Report, Figure 24 (Russia’s Counter-Memorial Part I, Annex 1).
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All of the craters shown on Colonel Bobkov’s analysis are where I would
expect: on the UAF front-line at least 10 km from the Buhas checkpoint.
The Counter-Memorial further stretches the credibility of General
Samolenkov’s tenuous point: craters from BM-21 rockets and artillery
shells will normally persist for weeks, if not months, so the preponderance
of the craters on the front-line between Yasne and Taramchak, 20 km
from the Buhas Checkpoint, is not necessarily evidence of recent
“intensive exchanges of fire”;25 more importantly, the absence of craters in
the Buhas area is evidence of the contrary. Although General Samolenkov
admits he “cannot assess the reasons behind the shelling,”26 he disagrees
with my conclusion that “such an attack cannot have been necessary or
reasonable.”27 However, the road and the checkpoint “had military
value”28 (in the words of General Samolenkov) only if military convoys or
reinforcements were transiting the checkpoint or if the DPR were intent
on breaking through the UAF combat forces in order, say, to capture
Volnovakha. There is neither evidence that the shelling was targeted
against military supplies29 nor that resupply convoys or UAF
reinforcements were transiting the Buhas checkpoint at the time of the 13
January 2015 shelling. In any case, the Buhas checkpoint was
approximately 14 km from the nearest DPR combat position which
precluded direct observation and would have made it difficult to gather
timely intelligence to target any UAF movement through the checkpoint.
b. A Precursor to an Attack Towards Volnovakha. If, on the other hand, the
DPR objective was to advance towards Volnovakha via the checkpoint,
DPR fighters would have had to fight their way through numerous UAF
combat positions, between 10 and 20 km to the northeast.30 Doctrinally
the attacking forces would have put together an artillery fire plan to
neutralise the Ukrainian combat forces in order to facilitate such a
breakthrough; there is no evidence of this. The nearest of the craters that
Colonel Bobkov found was 10 km from the checkpoint.31 This reinforces
my view that the attack on the Buhas checkpoint was an isolated
operation; its separation from all other artillery attacks in the area makes
it implausible that it was part of a coordinated fire plan with a common
military purpose. I drafted this paragraph on receipt of Russia’s Counter-
Memorial in late 2021. I now find myself finalising this report in March
2022 with Russian military forces attacking Volnovakha in exactly the way
I suggested above, supported by massive artillery attacks. There was none
of this in January 2015.
25 Russia’s Counter-Memorial Part I, para. 377(b).
26 Samolenkov Report, para. 57 (Russia’s Counter-Memorial Part I, Annex 2).
27 Ibid.
28 Ibid., para. 50.
29 See Russia’s Counter-Memorial Part I, para. 371 et seq.
30 See supra, Figure 1 and Figure 2.
31 See Bobkov Report, Figure 24 and Table 4 (Russia’s Counter-Memorial Part I, Annex 1).
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c. A Justifiable Target in its Own Right. Colonel Bobkov accepts that “[a]s at
09:08 (UTC) on 13 January 2015, there was a queue of 87 cars (63 cars
from the direction of Buhas and 24 cars from the direction of Volnovakha)
on the motor road on both sides of the checkpoint,”32 stretching 485
metres northeast and 225 metres southwest of the checkpoint.33 He also
admits “I observed no armoured vehicles at the Buhas Checkpoint as at
the time of satellite imagery.”34 Nevertheless, he adduces evidence of a
BRDM armoured scout vehicle, a rocket-propelled grenade and a machine
gun which appear to have been taken on 25 October 2014.35 His inference
is that the presence of such equipment, albeit more than two months prior
to the attack, reinforces the contention that targeting the checkpoint
served a justifiable military purpose. The BRDM is a Soviet-era lightly
armoured scout vehicle and no match for the heavy armour which was
used by both the DPR fighters and the UAF. The rocket-propelled
grenade, a hand-held weapon designed as a last-ditch defence against
vehicles, and the machine gun would be part of the normal arsenal at such
a checkpoint. As Colonel Bobkov’s analysis illustrates, there were
numerous other targets in the area that offered a military advantage
compared to the Buhas checkpoint.
12. I therefore do not see a plausible military reason for attacking the Buhas
checkpoint in isolation,36 let alone a reason for attacking the checkpoint when any military
advantage was almost certainly going to be outweighed by the inevitable civilian casualties
and damage.
13. Intercept Evidence. Russia’s reliance on communications intercepts as
evidence appears to relate to incidents at least 25 km from the Volnovakha checkpoint,37
particularly intercepts relied upon for the contention that the DPR fighters took care to avoid
civilian casualties.38 Therefore, the intercepts offer no evidence as to the intent of the DPR
fighters who shelled the Buhas checkpoint.
32 Bobkov Report, para. 36(2) (Russia’s Counter-Memorial Part I, Annex 1).
33 See ibid., Figure 8.
34 Ibid., para. 36(5). This is consistent with the findings of Ms. Gwilliam and Air Vice-Marshal
Corbett. See Gwilliam and Corbett Report, Figure 6 (Ukraine’s Reply, Annex 2).
35 See Bobkov Report, para. 44 (Russia’s Counter-Memorial Part I, Annex 1).
36 See Brown First Report, para. 27 (Ukraine’s Memorial, Annex 11).
37 See Samolenkov Report, para. 26 et seq. (Russia’s Counter-Memorial Part I, Annex 2).
38 See Russia’s Counter-Memorial Part I, paras. 391–392.
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14. Intended Target. Having argued that the Volnovakha checkpoint was a
legitimate target,39 General Samolenkov suggests that it may not have been the intended
target on the basis that the centre of the impacts was northeast of the checkpoint.40 This is
despite Colonel Bobkov’s analysis that shows there was no other potential military target
within 1.9 km of the checkpoint41 and despite the video evidence showing that there was
nothing in the area shelled except the checkpoint and the road.42 General Samolenkov cites
artillery positions at 6 km43 and 4.4 km44 from the checkpoint and conflates these with
further unverified social media posts to suggest potential intended targets without any
evidence that these positions were occupied at the time of the attack.45 Moreover, the centre
of the area shelled was exactly where Colonel Bobkov concludes “at 09:08 (UTC) on 13
January 2015, there was a queue of . . . 63 cars from the direction of Buhas . . . on the motor
road . . . (Figure 8).”46 Given that General Samolenkov accepts that the area targeted was
“not directly visible”47 by DPR fighters and therefore that the attackers were unlikely to know
how many vehicles were in the queue from the direction of Buhas, any suggestion that the
intended target was 300 metres northeast of the checkpoint reinforces Ukraine’s claim that
the attack was a deliberate targeting of civilians. If the attack had occurred at the time of the
39 See Samolenkov Report, paras. 43–57 (Russia’s Counter-Memorial Part I, Annex 2).
40 Ibid., para. 59. Approximately 300 metres by my calculation using the crater map at Annex 89. See
Map of Crater Impacts (Ukraine’s Memorial, Annex 89); see also Brown First Report, para. 30
(Ukraine’s Memorial, Annex 11).
41 See Bobkov Report, Figure 23 and Table 2 (Russia’s Counter-Memorial Part I, Annex 1). A “miss
distance” similar to General Samolenkov’s purported target for the Mariupol attack below and
similarly implausible for the reasons discussed in paragraph 30 below. See infra, para. 30.
42 See Footage from a Surveillance Camera at the Checkpoint (13 January 2015) (video) (Annex 695).
43 See Samolenkov Report, para. 61 (Russia’s Counter-Memorial Part I, Annex 2).
44 See ibid., para. 62.
45 See ibid., paras. 63–64. Moreover, the “miss distance” involved in these suggestions would make
the targeting of the attack even more indiscriminate than Ukraine is suggesting.
46 Bobkov Report, para. 36(2) (Russia’s Counter-Memorial Part I, Annex 1). Bobkov Figure 8 shows
that the line of cars stretched 485 metres northeast from the checkpoint. See ibid., Figure 8; see also
Gwilliam and Corbett Report, Figure 10 (Ukraine’s Reply, Annex 2).
47 Samolenkov Report, para. 64 (Russia’s Counter-Memorial Part I, Annex 2).
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satellite image or if there had been a similar number of vehicles queuing from the direction
of Buhas at the actual time of the attack, the centre of the barrage (mean point of impact)
would have been directly over the line of civilian vehicles. General Samolenkov concludes
that “[i]f the person responsible for the shelling had intended to harm civilians, it is likely
that [the settlements of Novotroitske and Olhynka to the southeast of Dokuchayevsk] would
have been targeted, rather than the Buhas checkpoint or the road nearby.”48 I disagree with
General Samolenkov on this point, as this would not have had the same intimidation effect
on the large number of civilians using the road running through the Buhas checkpoint.
15. BM-21 Firing Position. General Samolenkov attempts to cast doubt on my
conclusions as to the attacking BM-21 firing position from the perspective of both crater
analysis and dispersion.49 The conclusion he reaches is “that the bearing was somewhere
between north-north-east (OSCE analysis) and north-east (Ukraine’s analysis)”50 and “the
firing range was less than 14 kilometres.”51 The forward UAF positions in a northeast
direction were 10 km from the Volnovakha checkpoint.52 The forward DPR positions in a
northeast direction were 13 km from the checkpoint.53 In between the respective positions
lies the “no-man’s-land” described in paragraph 6 above. Any firing range between 10 and 13
km therefore puts the firing launchers in no-man’s-land: this would be tactical absurdity.54
Any firing range greater than 13 km puts the firing launchers in DPR-held territory. The
48 Samolenkov Report, para. 60 (Russia’s Counter-Memorial Part I, Annex 2).
49 See ibid., para. 66 et seq.
50 Ibid., para. 82.
51 Ibid., para. 68.
52 See Bobkov Report, Figure 23 (Blue Positions 10 and 11) (Russia’s Counter-Memorial Part I, Annex
1).
53 See ibid. (Red Positions 11 and 12); see also Gwilliam and Corbett Report, para. 45 (Ukraine’s Reply,
Annex 2).
54 BM-21 is not an armoured weapon system: it is essentially a civilian truck with rockets on the back.
It is therefore vulnerable to attack from all weapon systems, from small arms upwards. Doctrinally
therefore it would normally fire from a position well behind the front-line, out of sight of opposing
weapon systems.
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15
firing range would have to be less than 10 km to make credible any suggestion that the attack
was not launched by DPR fighters. General Samolenkov claims that the dispersion of the
known craters55 indicates that “[i]f spoiler rings are used, the range would be even smaller:
9–10 km.”56 No evidence of spoiler rings was found by the investigators. Even if there had
been, General Samolenkov’s refusal to rule out “friendly fire from Ukraine”57 implies that
UAF BM-21 launchers could have been deployed alongside UAF forward defensive positions
in order to fire back at the Volnovakha checkpoint (which was 10 km behind the forward
positions): a ludicrous suggestion. General Samolenkov’s obfuscation is therefore academic:
the only plausible explanation is that the attack was launched by DPR fighters. Nevertheless,
to address his detailed arguments:
a. Crater Analysis
i. Firing Range. On the basis of consistency across the six craters
measured, I concluded that “the angle of descent calculated during
the Ukrainian Security Service analysis (between 52 and 55 degrees)
corresponds to a firing table range of between 19.4 and 19.8
kilometres.”58 The Counter-Memorial infers my blind acceptance of
Ukraine’s crater analysis59 with General Samolenkov stressing
“inherent limitations,”60 “apparent deficiencies,”61 etc. when
deducing the firing range by crater analysis. Crater analysis is not
an exact science;62 however, his argument is academic. By General
Samolenkov’s formula that “[e]ven an error of 5 degrees in
determining the angle of descent will cause an error of 1 kilometre in
determining the range of firing,”63 the 9.5 km difference in range
between my conclusion and a firing position within UAF-held
55 Martyniuk’s report identifies 88 craters. See Record of Review, drafted by O.V. Martyniuk, Senior
Investigator of the Security Service of Ukraine (16 January 2015), pp. 1–11 [hereinafter Martyniuk
Report] (Ukraine’s Reply, Annex 14).
56 Samolenkov Report, para. 88 (Russia’s Counter-Memorial, Annex 2).
57 Ibid., para. 91.
58 Brown First Report, para. 26 (Ukraine’s Memorial, Annex 11).
59 See Russia’s Counter-Memorial Part I, para. 381.
60 Samolenkov Report, para. 71 (Russia’s Counter-Memorial, Annex 2).
61 Ibid., para. 73.
62 I made the point in paragraph 25 of my first report that “it is not exact, but is generally reliable ±20
degrees.” Brown First Report, para. 25 (Ukraine’s Memorial, Annex 11).
63 Samolenkov Report, para. 70 (Russia’s Counter-Memorial Part I, Annex 2).
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16
territory64 would have resulted in angles of descent 45 degrees less65
than those measured in the Romanenko report.66 Even with less
than theoretically perfect battlefield methodology, the likelihood of
those measurements being consistently wrong by more than 20, let
alone 45, degrees is minute. Irrespective of any expert witness
academic debate about this esoteric subject, the conclusion is the
same: the firing range deduced from crater analysis makes it
implausible for the firing position to have been anywhere other than
in DPR-held territory.
ii. Firing Direction. General Samolenkov attempts to undermine the
deductions as to firing direction on grounds of both imperfection
and inconsistency between the Romanenko report and the OSCE
SMM.67 The consistency of the measurements in the Romanenko
report, together with the equipment and methods used, are as good
as might reasonably be expected in the circumstances. Nevertheless,
if the conclusions as to range in sub-paragraph (i) above are
accepted, it becomes academic whether the Court accepts the
measurements in the Romanenko report68 or the OSCE report69 or a
mean between the two.70 At a firing direction anywhere between
64 UAF forward positions were approximately 10 km from the Buhas checkpoint, i.e., between 9.4 km
and 9.8 km short of my deduced range. DPR forward positions were approximately 4 km further to
the northeast, with the intervening “no-man’s-land” implausible as a firing position.
65 In fact, General Samolenkov’s formula is too crude: from the official firing tables the angle of
descent at a firing range of 10 km (the UAF front-line) is 15 degrees, i.e., between 37 and 40 degrees
different from the angles measured in the Romanenko report. See Record of Review, drafted by
Captain of Justice V. Romanenko, Senior Investigator of the Security Service of Ukraine (16 January
2015), pp. 3–7 [hereinafter Romanenko Report] (Ukraine’s Memorial, Annex 87). Even with spoiler
rings fitted, of which there is neither evidence nor tactical justification, a firing range of 10 km results
in an angle of descent of 30 degrees, giving a difference of 22-25 degrees from the angles measured in
the Romanenko report. See ibid.
66 See ibid.
67 See Samolenkov Report, para. 79 (Russia’s Counter-Memorial Part I, Annex 2).
68 The firing directions from the six craters analysed varied between 37.68 and 40.32 degrees (628
and 672 mils). A range of between 19.4 and 19.8 km puts the firing position in the town of
Dokuchaevsk.
69 North-northeast = 22.5 degrees (375 mils). A range of between 19.4 and 19.8 km puts the firing
position in the village of Yasnoe (“Yasne” on Colonel Bobkov’s figures above).
70 The tactical situation, with the DPR fighters’ forward position around Yasne, favours the
Romanenko measurements as doctrinally BM-21 would ideally not fire from positions so close to the
front-line, whereas Dokuchaevsk offers greater protection and concealment, hence the conclusion in
my first report. See Brown First Report, para. 26 (Ukraine’s Memorial, Annex 11). On the other hand,
imagery analysis in the Geollect Report shows likely BM-21 movement between west of Dokuchaevsk,
together with scorch marks and potential hiding places in and around Yasne. See Gwilliam and
Corbett Report, Figures 12–14 (Ukraine’s Reply, Annex 2). Both options are plausible — neither
changes the conclusion.
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these reports, a range of between 19.4 and 19.8 km places the point
of origin of the fire in DPR-held territory.71
iii. Dispersion. The image initially provided to me in 2018 was
overprinted with 50 craters.72 The Martyniuk report identified 88
crater sites.73 Assuming, as I was told, that the data for the former
was gathered by unmanned aerial vehicle (“UAV”), the discrepancy
can be explained by the UAV sensor or the analyst not picking out
some of the craters that Martyniuk was able to identify in person on
the ground. Given that the Ukraine Security Service was primarily
focused on identifying impacts that had caused injury or damage,
once they had identified craters where the injury and damage had
been caused, there was little reason for them to search for rockets
that had landed harmlessly. Martyniuk’s two-day investigation on
the ground is therefore more complete than the imagery initially
provided to me. Tellingly, and unlike his analysis of the Mariupol
shelling addressed below, Colonel Bobkov chose not to analyse postincident
imagery for craters, despite the fact that “between 13
January and 21 February 2015 . . . [i]n total, 44 images of the
relevant territory were available.”74 Such imagery, exemplified by
Geollect’s analysis below, shows 92 craters with a range dispersion
of 1,305 metres along the deduced direction of fire and a lateral
dispersion of 1,300 metres:
71 If my conclusions as to range are not accepted, even the most extreme conclusion possible — that
the firing direction was 22.5 degrees with a range of less than 19 km — would place the firing position
in either no-man’s-land or the front-lines, both of which are tactically and doctrinally absurd. Any
other plausible combination of range and direction places the firing position in DPR-held territory.
72 Ukraine’s Security Service claimed this was an OSCE product (purportedly the imagery gathered by
UAV referred to in Ukraine’s Memorial, Annex 322, but unverified).
73 Martyniuk Report, pp. 1–11 (Ukraine’s Reply, Annex 14).
74 Bobkov Report, paras. 25–26 (Russia’s Counter-Memorial Part I, Annex 1).
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Figure 5: Impact craters at the Buhas checkpoint (Geollect Figure 9).75
Each BM-21 launcher fires up to 40 rockets before needing to reload.
The analysis by Martyniuk and Geollect shows that at least 92
rockets were fired in less than 30 seconds; we can therefore safely
deduce that at least three launchers were used in the attack.
However, 92 is a strange number of rockets to use; 80 rockets could
be delivered by two launchers; the additional 15% of high explosive
delivered by a further 12 rockets would not justify the use of a third
launcher. If the attackers were going to use three launchers, the
greatest effect would be achieved by firing full loads, a total of 120
rockets. It would be unsurprising if Martyniuk and satellite imagery
failed to identify the craters of the remaining 28 rockets,76
particularly any that landed in the woodland north and south of the
checkpoint.77 The Counter-Memorial conclusion that “there is
plainly an inconsistency between the two sets of measurements; they
cannot both be correct”78 is simplistic and stretches General
Samolenkov’s deductions beyond the underlying firing data: the
75 Reproduced from Gwilliam and Corbett Report, Figure 9 (Ukraine’s Reply, Annex 2).
76 Equating to 23% of a full load from three launchers.
77 The 88 craters identified by Martyniuk average approximately 30 x 30 cm. See Martyniuk Report,
pp. 1–11 (Ukraine’s Reply, Annex 14).
78 Russia’s Counter-Memorial Part I, paras. 382–383 (referring to the discrepancy between the actual
dispersion of the 50 craters on the original imagery and the firing table dispersion).
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19
ellipse of 640 metres long x 580 metres wide, compiled from the
original map provided to me in 2018 and used in my first report,
would be expected to cover more than 96%79 of the expected range
spread and between 70 and 80%80 of the expected lateral spread of
rockets fired from a range of 19.6 km. The actual ellipse of the 92
craters from the 21 February 2015 satellite imagery above of 1,305
metres long x 1,300 metres wide covers 166% of the expected range
spread and 100% of the expected lateral spread of rockets fired from
a range of 19.6 km:
Figure 6: Diagram (to scale) showing fall of shot pattern created by 122mm rockets at
19.6 km range, using Firing Table data.81
79 96% of impacts (6 x PEr) at a firing range of 19.6 km = 588 metres.
80 82% of impacts (4 x PEd) at a firing range of 19.6 km = 652 metres.
81 Used in paragraph 31 of my first report and compiled from Ministry of Defence of the USSR, Firing
Tables for High Explosive Fragmentation Projectiles M-21OF (1985) (Ukraine’s Memorial, Annex
599).
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20
Given that the actual fall of shot pattern is almost circular, I have
also compared it to the range at which the expected dispersion
would be circular: at a range of 15.6 km the 100% ellipse would be
928 metres in circumference:
Figure 7: Diagram (to scale) showing fall of shot pattern created by 122mm rockets at
15.6 km range, using Firing Table data.
At a range of 15.6 km from the Buhas checkpoint, the firing point of
origin of the attack in a direction of 38.68 degrees82 would be
approximately 2 km southwest of Dokuchaevsk, still inside DPRheld
territory. General Samolenkov’s conclusion that “the firing
range was less than 14 kilometres”83 fits neither the crater analysis
nor the dispersion pattern of the fall of shot of the rockets.
82 The mean of the six craters analysed in the Romanenko Report. See Romanenko Report, pp. 3–7
(Ukraine’s Memorial, Annex 87).
83 Samolenkov Report, para. 68 (Russia’s Counter-Memorial Part I, Annex 2).
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21
16. Choice of Weapon System. Unsurprisingly, I have found no evidence that the
DPR had developed its own doctrine or rules for artillery firing or control. Since Russian
weapon systems were being used/supplied to DPR fighters, I would expect them to use
Russian doctrine and rules. For BM-21 Grad the doctrinal “minimum dimensions of the
target (front x depth) 400 x 400m.”84 The size of the Buhas checkpoint is approximately 100
x 100m. BM-21 Grad is therefore inherently indiscriminate for a target of this size in that,
even if the checkpoint had been accurately targeted, the fall of shot pattern would inevitably
have resulted in more than 50% of the rockets falling outside their intended target. General
Samolenkov accepts “that provided the DPR had a choice of artillery and was targeting the
checkpoint, BM-21 Grad MLRS would not have been the most efficient weapon to use against
such target. General Brown accurately describes the general characteristics of this weapon at
paragraph 29 of his report. However, I do not know whether the militia had a choice either
in terms of the weapons available to them at the relevant time or timing of the attack.”85
However, he had previously concluded that intercepts which he analysed refer to artillery
guns as opposed to rockets.86 Given the deduction that the DPR fighters in the Dokuchaevsk
sector did have artillery guns, even artillery guns with the shortest reach87 would have been
able to engage the Buhas checkpoint from firing positions in DPR-held territory shown on
Colonel Bobkov’s figures above. In General Samolenkov’s lexicon, guns would have been
more “efficient” than BM-21. In my view guns, by virtue of their tighter fall of shot pattern,
might have given some credence to the claim that the attackers were at least trying to target
the checkpoint, rather than aiming to obliterate 100 hectares and whatever happened to be
in it. If the attackers’ intent had been to destroy the checkpoint for military reasons, with
84 Ministry of Defense of the Russian Federation, Manual for the Study of the Rules of Firing and Fire
Control of Artillery (PSiUO-2011) (2014), para. 409, Table 55 (Ukraine’s Reply, Annex 61).
85 Samolenkov Report, para. 58 (Russia’s Counter-Memorial, Annex 2).
86 See ibid., paras. 27, 29, 30, 32.
87 D-30 122mm with a maximum range of 15.4 km using conventional ammunition.
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22
minimum damage to civilian traffic transiting along the road, guns would have been the clear
choice of weapon system:88
Figure 8: Comparison (to scale) of fall of shot pattern created by 122mm rockets at 19.6
km (left) versus patterns created by 122mm artillery gun at 15 km (right top).
As shown in the comparison of fall of shot patterns above and the satellite imagery at Figure
3, the firers of the attack on 13 January 2015 saturated with high explosive more than a
square kilometre, in which there was no target other than the Buhas checkpoint. The
attackers would have known that the inevitable outcome would be indiscriminate injury,
death, and intimidation of the civilians transiting the checkpoint. It is hard to interpret the
attackers’ objective as otherwise.
17. Comparison with the DPR Checkpoint at Olenivka. As an example of the
Counter-Memorial’s theme of focusing on Ukrainian actions mentioned in paragraph 2
88 Cf. OSCE, Spot Report by the OSCE Special Monitoring Mission to Ukraine (SMM): Shelling in
Olenivka (28 April 2016) (describing the alleged UAF shelling of a DPR checkpoint at Olenivka where
the OSCE observed only seven craters and concluded that 122mm artillery guns had been used).
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23
above, Russia compares the shelling of Volnovakha with Ukraine’s shelling at a DPR
checkpoint in Olenivka on 27 April 2016, in an attempt to demonstrate that both sides
attacked checkpoints during the conflict.89 However, the OSCE report of the incident90 notes
that only seven craters (north of the DPR checkpoint) were observed and concluded that
122mm artillery was used (as opposed to the volley of MLRS fire launched against the Buhas
checkpoint).91 Moreover, the attack at Olenivka appears to have taken place in the night
when civilian traffic would be minimal, if not non-existent.92 Above all, as demonstrated in
the Geollect Report (Figure 9, below), the Olenivka position is a front-line combat position,
whereas the Buhas checkpoint was 10 km behind UAF forward positions, as I have described
above.93 Attempting to portray all “checkpoints” in a simplistic generic manner is
misleading. In this instance the Olenivka checkpoint is more akin to the UAF position at
Berezove94 than the Ministry of Internal Affairs checkpoint at Buhas.
89 See Russia’s Counter-Memorial Part I, para. 376.
90 See OSCE, Spot Report by the OSCE Special Monitoring Mission to Ukraine (SMM): Shelling in
Olenivka (28 April 2016).
91 For analysis of relative weapon systems selection see supra, para. 16.
92 OSCE, Spot Report by the OSCE Special Monitoring Mission to Ukraine (SMM): Shelling in
Olenivka (28 April 2016).
93 See supra, para. 7.
94 See ibid.
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Figure 9: Comparison of the Buhas checkpoint with the DPR checkpoint at Olenivka
(Geollect Figure 8).95
18. Summary of Conclusions on the Volnovakha Shelling. As a result of the
Counter-Memorial and the reports of General Samolenkov and Colonel Bobkov, the
fundamental conclusions from my first report96 have changed only in respect of adding the
word “multiple” in sub-paragraph (a) below, reflecting the refined crater analysis conducted
by Geollect:97
a. The Volnovakha shelling was carried out using multiple BM-21 Grad
MLRS firing high explosive fragmentation rockets from DPR-held
territory.
b. There was no apparent military advantage in attacking the checkpoint.
c. The choice of weapon system and its method of targeting were incapable
of damaging the checkpoint without hitting the road and civilian traffic on
it; indeed, the attackers would have known that their actions would
95 Reproduced from Gwilliam and Corbett Report, Figure 8 (Ukraine’s Reply, Annex 2).
96 See Brown First Report, paras. 37–40 (Ukraine’s Memorial, Annex 11).
97 See Gwilliam and Corbett Report, Figure 9 (reproduced as Figure 5, above) (Ukraine’s Reply, Annex
2).
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25
impact the road and any civilian traffic more than the checkpoint.
d. The attackers appear to have made no effort to mitigate this inevitable
result by using an alternative weapon system, more accurate methods of
targeting or attacking at a time when civilian traffic was minimal.
III. SHELLING OF RESIDENTIAL AREA OF MARIUPOL — 24 JANUARY 2015
19. Common Ground Between My First Report and Russia.
a. The weapon system used in the attack on the civilian residential area of
Mariupol on the morning of 24 January 2015 was BM-21 Grad98 firing
high explosive (“HE”) fragmentation rockets.
b. “[A]t least some of the shelling came from the DPR positions to the east or
north east of Mariupol.”99
c. Evidence suggests that the previous day a BM-21 attack had been
launched against a military target approximately 600 metres from the
eastern extremity of the residential area.100 Evidence also suggests that
approximately four hours after the shelling of the civilian residential area,
a separate BM-21 attack was launched onto another military target101
approximately 300 metres from the northern extremity of the residential
area. The largest of the military targets to the east of the residential
area102 was accurately shelled by BM-21 before the attack on the
residential area.103 All of these attacks confirm that DPR fighters were
able to discriminate targets when firing BM-21 at targets to the east of the
residential area of Mariupol.
20. Tactical Situation. As with the Volnovakha shelling, General Samolenkov’s
description of the tactical background appears to be an attempt to show that the shelling of
the Vostochniy civilian residential district was collateral damage from an attack on a military
target and/or a mistake. General Samolenkov’s theme of attempting to undermine Ukraine’s
98 See Samolenkov Report, para. 186 (Russia’s Counter-Memorial Part I, Annex 2).
99 Ibid., para. 187 (drawing on his conclusion in paragraph 151).
100 See Russia’s Counter-Memorial Part I, para. 424 (citing Ukraine, Primorsky District Court of
Mariupol, Case No. 265/4773/15-k, Judgment, 18 June 2019,
https://reyestr.court.gov.ua/Review/82431956 (Russia’s Counter-Memorial Part I, Annex 77)). There
is some confusion over ATO position nomenclature: “4014” is used variously to describe both the
“northern checkpoint” on the road (Checkpoint No. 4014/Bobkov Position 20) as well as the platoon
position (Bobkov Position 25/Kirsanov Judgement, Point 6) which is also referred to as “4014A.”
101 Russia’s Counter-Memorial Part I, para. 412(a). The installation shelled was the Ukrainian
National Guard Checkpoint No. 4014 (also known as the “northern checkpoint” and referred to as
Position 20 in the Bobkov Report).
102 Company Position 4013 (or Position 17 in the Bobkov Report).
103 See Bobkov Report, para. 82 (Russia’s Counter-Memorial Part I, Annex 2).
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case on grounds of imperfect evidence104 continues; as with the shelling at Volnovakha, it is
not surprising that there is some discrepancy between maps and sources105 and a lack of
complete records on all sides given the ongoing conflict between the UAF and DPR fighters.
Importantly, in this case any evidentiary gaps make no difference to the conclusions. As with
Volnovakha, rather than attempting to pin-point an exact contact line,106 I believe it is more
important to understand that there existed a no-man’s-land of between 4 and 10 km between
the UAF and the DPR fighters in this sector, the control of which ebbed and flowed. Colonel
Bobkov illustrates this well in Figure 25 of his Report, reproduced in Figure 10 below.
21. DPR Plans. Ukraine was in no doubt that the DPR objective, loudly
trumpeted in the days leading up to the BM-21 attack on the civilian residential area, was to
capture Mariupol, but not, as simplistically suggested by General Samolenkov, by a direct
assault on the city. The value of capturing Mariupol lay in the seizure of its port and
industry, not in reducing it to rubble. General Samolenkov himself stresses the strategic
importance of Mariupol: every reason to avoid a frontal assault through the Vostochniy
residential area.107
104 See Samolenkov Report, para. 98 (Russia’s Counter-Memorial Part I, Annex 2).
105 See Russia’s Counter-Memorial Part I, para. 407; Samolenkov Report, paras. 99 et seq. (Russia’s
Counter-Memorial Part I, Annex 2).
106 For example, the debate at paragraph 407 of the Counter-Memorial, while interesting, does not
change the resulting conclusions. See Russia’s Counter-Memorial Part I, para. 407.
107 None of General Samolenkov’s evidence in paragraphs 119 to 135 of his report add substance to his
attempt to show that the Vostochniy shelling was part of the preparation for an attack on that part of
the city. See Samolenkov Report, paras. 119–135 (Russia’s Counter-Memorial Part I, Annex 2).
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Figure 10: Location of the UAF and DPR Fighters (Bobkov Figure 25).108
108 Reproduced from Bobkov Report, Figure 25 (Russia’s Counter-Memorial Part I, Annex 1).
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22. Colonel Bobkov’s analysis clearly shows the UAF’s main defensive positions
focused on the area of Hnutove and Talakivka (more than 5 km to the north of the 24
January shelling).109 The UAF front-line was much stronger in that sector and consisted of
regular army units, as opposed to the National Guard forces immediately to the east of
Mariupol. Based on my discussions with UAF commanders, this disposition was founded on
the UAF analysis that the DPR fighters’ most likely course of action would be an attempt to
outflank Mariupol to the north, on an axis between Sartana and Orlivska. The ground here is
much more open, lending itself to a rapid advance by armoured forces. This would
effectively cut off the city and its defenders from the rest of Ukraine and would likely be an
easier and less costly battle than fighting their way through the city itself.110 Russian
doctrine, presumably followed by the DPR in the apparent absence of their own, stems from
Sun-Tzu’s dictum that “[t]he best military policy is to attack strategies; the next to attack
alliances; the next to attack soldiers; and the worst to assault walled cities. Resort to
assaulting walled cities only when there is no other choice.”111 From a historical perspective,
Soviet urban operations of 1945 had shown that “it is crucial to ensure fighting outside builtup
areas using pre-emption and dislocation through intelligent movement and threat of
forces.”112 The difficulty of fighting in urban areas had been painfully re-learned by Russian
forces in Grozny between 1994 and 2000.113 Western doctrine is similar: urban combat
109 See Bobkov Report, Figure 25, Figure 29, and Table 9 (Russia’s Counter-Memorial Part I, Annex 1).
110 Further evidence of this plan is contained in the intercepted conversation between Kirsanov and
Ponomarenko (11:04:12, 24 January 2015). See Intercepted Conversation between Valeriy Kirsanov
and Sergey Ponomarenko (24 January 2015) (referred to by General Samolenkov in paragraph 101 of
his report: “column of our guys headed to Hnutove”) (Ukraine’s Memorial, Annex 415).
111 Sun-Tzu, The Art of Warfare (Roger Ames., 1993), 111 (Ukraine’s Reply, Annex 80).
112 Lt. Col. (Retired) Matthew Whittchurch, Lessons from Soviet Urban Operations 1945, British Army
Review Special Report (Winter 2019), pp. 109–110 (Ukraine’s Reply, Annex 82). Examples include
use of Soviet mobility to envelop and encircle Silesia, compelling the German defences to withdraw
once outflanked.
113 A population of approximately 400,000 in 1994 compared with Mariupol’s population of 445,000
in 2015. See Ola Oliker, Russia’s Chechen Wars 1994-2000 Lessons from Urban Combat, Rand
Corporation (2001).
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should normally occur only when there is no bypass around a city.114 Both sides’
understanding of this doctrine explains the relatively light Ukraine National Guard defence
of the Vostochniy Road axis,115 in comparison with the UAF main defences at Hnutove and
Talakivka, illustrated by Colonel Bobkov below:
114 “Tactical doctrine stresses that urban combat operations are conducted only when required and
that built up areas are isolated and bypassed rather than risking a costly, time-consuming operation in
this difficult environment.” United States Department of the Army, Military Operations on
Urbanized Terrain (MOUT), Field Manual 90-10 (15 August 1979), p. 1 (Ukraine’s Reply, Annex 64);
see also United States Department of the Army, An Infantryman’s Guide To Combat In Built-up
Areas, Field Manual 90-10-1 (12 May 1993), pp. 1–5 (Ukraine’s Reply, Annex 65).
115 Illustrated by Figure 27 from the Bobkov Report, reproduced below.
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Figure 11: Location of UAF positions and forces identified in the area of
Talakivka and Lomakyne (more than 5 km from the Vostochniy residential area)
on 23 February 2015 (Bobkov Figure 29).116
116 Reproduced from Bobkov Report, Figure 29 (Russia’s Counter-Memorial Part I, Annex 1).
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23. General Samolenkov’s attempt to conflate the UAF main defensive positions
in Hnutove and Talakivka with the defences in front of Vostochniy into one monolithic
military objective117 is supported neither by doctrine nor Colonel Bobkov’s analysis.
Moreover, as General Samolenkov notes, “[t]he Abroskin map . . . also indicates shellings of
positions near Talakivka, Primorskoye and a road position to the east of the city. The tragic
events in Mariupol may have understandably distracted attention from other shellings and
generally from covering the overall military picture.”118 All of this suggests that any DPR
attack on the eastern outskirts of the city itself was at most a subsidiary axis, but more likely
a distraction or an attempt to frighten the citizens into fleeing their homes, thereby easing
the DPR fighters’ anticipated task of having to take control of (or “clean up”) the city. The
smaller the population, the easier to control the city.119 Intercept evidence adds credence to
this: “So that I can f**king come in there and f**king clean it up. I don’t give a f**k, we don’t
give a f**k whether we can, or cannot . . . we f**k them in their f**king ass! . . . [Laughing] . .
. Take over and that’s f**king it . . . That’s the only way.”120 I drafted this report in late 2021
on the basis of the evidence then available and the underpinning doctrine. I find myself
finalising this report in March 2022 with Russian military forces trying to achieve in
Mariupol exactly what I suggested above the DPR fighters were attempting in 2015: outflank,
surround and cut off the city, whilst firing into the residential areas to terrorise the
population into leaving and sap their support for the Ukrainian authorities.
117 See, e.g., Samolenkov Report, paras. 109–110, 123, 153–155, 164 (citing September 2014 OSCE
reporting of UAF rocket artillery 500 metres from what appears to be Company Position 4013).
118 Ibid., para. 124.
119 During the battles for Grozny (1994–2000), the city’s population dropped from 400,000
to 183,000. See UN-Habitat, Grozny Project: Post-Conflict Restoration of the City of Grozny
Program “The City Without Any Signs of War” (Application from the City of Grozny), p. 3.
120 Intercepted Conversation between Sergey Ponomarenko and Oleksandr Evdotiy (23 January 2015),
p. 2 (Ukraine’s Memorial, Annex 418).
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Figure 12: Location of Ukrainian National Guard positions and forces identified in the
area of Mariupol and Vynohradne on 13 January 2015 (Bobkov Figure 27).121
121 Reproduced from Bobkov Report, Figure 27 (Russia’s Counter-Memorial Part I, Annex 1).
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24. Military Targets to the East of the City. Colonel Bobkov’s analysis makes the
trench systems east of the shelled residential area appear to be strongly held, but the more
detailed examination by Geollect in Figure 13 below shows the majority to be unmanned
anti-tank ditches designed to channel armoured forces, rather than be defended by infantry.
Figure 13: Trenches to the east of Mariupol (Geollect Figure 27).122
122 Reproduced from Gwilliam and Corbett Report, Figure 27 (Ukraine’s Reply, Annex 2).
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25. Company Positions 4013123 and 4015124 were front-line defences. Checkpoint
4014 (or the “northern checkpoint”)125 was effectively a second-line position, behind
Company Position 4013; as stated in my first report, its manning and equipment and the
trenches immediately to the east of the residential area126 were “insufficient to conduct
offensive operations” and “any military advantage from neutralizing the checkpoint would
only accrue if followed up immediately by a ground assault. No ground assault was
forthcoming.”127 Moreover, for any shelling of Checkpoint 4014128 and the trenches
immediately to the east of the residential area129 to make military sense, Company Position
4013130 would have needed to have been attacked simultaneously or immediately
beforehand.131 There is no evidence of this. General Samolenkov adduces numerous sources
to suggest that an attack on the city was ongoing in the lead-up to the shelling of Vostochniy
in order to justify shelling of targets close to the residential area,132 but all the references
appear to be equally attributable to a DPR attempt to outflank133 the city in the sector
123 Bobkov Position 17. Colonel Bobkov was directed to analyze video of September 2014 shelling of
this position. See Bobkov Report, para. 75 et seq. (Russia’s Counter-Memorial Part I, Annex 1).
General Samolenkov picks up on this in paragraph 159 of his report. See Samolenkov Report, para.
159 (Russia’s Counter-Memorial Part I, Annex 2). Colonel Bobkov claims that his analysis of the 13
February 2015 imagery of Position 17 (Company Position 4013) shows “25 dug-out positions for
armoured vehicles, a tank, two armoured vehicles, 1,900 m of trenches (fighting holes), and 623
impact craters left by artillery shells.” Bobkov Report, para. 84 (Russia’s Counter-Memorial Part I,
Annex 1). I concur with his conclusion: this was a bona fide front-line military target, the impact
craters presumably including those from the September 2014 shelling.
124 Bobkov Positions 29 and 30.
125 Bobkov Position 20.
126 Bobkov Positions 19, 21–23, and 25.
127 See Brown First Report, para. 49 (Ukraine’s Memorial, Annex 11).
128 Bobkov Position 20.
129 Bobkov Positions 19, 21–23, and 25.
130 Bobkov Position 17.
131 The argument in paragraph 49 of my first report. See Brown First Report, para. 49 (Ukraine’s
Memorial, Annex 11).
132 See Samolenkov Report, paras. 114–115 (Russia’s Counter-Memorial Part I, Annex 2).
133 I.e., to go around the city (in this case to the north), thereby cutting the city off from the rest of
Ukraine.
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between Sartana and Orlivska: at least 5 km, and in some cases more than 25 km,134 to the
north of the residential area. General Samolenkov also cites political statements from the
DPR leadership,135 including “no one is going to storm the city”136 which he “find[s] it
difficult to reconcile”137 with his contention that the DPR planned a ground attack along the
Vostochniy road; paradoxically, such statements are less difficult to reconcile with a DPR
outflanking attack to the north of the city. General Samolenkov ultimately concedes that “I
do not see sufficient evidence of the actual attempt to capture Mariupol.”138 In that respect,
we are in complete agreement.
26. BM-21 Firing Position. As with the attack at Volnovakha, the Counter-
Memorial coverage of the BM-21 firing position is simply an attempt to cast doubt on the
Ukrainian and OSCE reports and my resulting conclusions, rather than posit an alternative
theory. General Samolenkov’s attempt to show that the shelling could have originated from
UAF-held territory by citing intercept evidence is misleading, as the Kichiksu railway
station139 is beyond BM-21 range from Vostochniy, while the village of Vynohradne140 is too
close to be a plausible firing position. His suggestion that the “shelling could have come
from various directions”141 with “shells fired potentially from different positions (data
provided by the OSCE and the Ukrainian investigation implies that the shelling may have
come from different positions)”142 adds weight to Ukraine’s position that this attack could
134 See Samolenkov Report, para. 123, n.156 (referencing Kichiksu) (Russia’s Counter-Memorial Part I,
Annex 2).
135 See Samolenkov Report, paras. 116–117 (Russia’s Counter-Memorial Part I, Annex 2).
136 Ria News, Zakharchenko: The Militia Are Not Going to Assault Mariupol (24 January 2015)
(Russia’s Counter-Memorial Part I, Annex 106).
137 Samolenkov Report, para. 117 (Russia’s Counter-Memorial Part I, Annex 2).
138 Ibid., para. 119.
139 See ibid., para. 142.
140 See ibid., para. 180. Parts of Vynohradne are less than the minimum range of BM-21 from the
impact points.
141 Ibid., para. 140.
142 Ibid., para. 148.
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not be attributed to technical error, since the likelihood of the same technical error being
perpetrated across multiple firing units is significantly less than a technical error occurring
within one firing unit. Notwithstanding any of the above, General Samolenkov’s debate is
academic as all plausible firing positions were in DPR-held territory.
27. Crater Analysis. General Samolenkov bemoans the inaccuracy and
inconsistency of the Ukrainian and OSCE crater analysis,143 but the simplicity of the process,
illustrated in Figure 14 below and conducted in this case by an experienced artillery officer,
should not detract from the conclusion that the attack was launched from DPR-held
territory. Moreover, Colonel Bobkov appears not to have been tasked to conduct crater
analysis on which General Samolenkov might be able to build plausible alternatives to
Ukraine’s case.
Figure 14: Deputy Commander M Sector, Colonel Viktor Shidlyukh,
briefs the media on crater analysis following the attack on Mariupol.
143 See Samolenkov Report, paras. 138–150 (Russia’s Counter-Memorial Part I, Annex 2).
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28. Intended Target. General Samolenkov argues that the intended target of the
attack was likely Company Position 4013 (Bobkov Position 17) and that the intercept
evidence citing Vostochniy, taken in the context of an additional intercept which was not
included in Ukraine’s Memorial, supports this theory.144 If that were the case and there was
a genuine rationale to attack Company Position 4013, the realisation that the attack had
catastrophically overshot its intended target could have been rectified swiftly by adjusting
the fire onto the target.145 That did not happen.
29. Technical Error. General Samolenkov asserts that the reason the attack
missed its intended target was “due to a miscalculated target or equipment malfunction.”146
As demonstrated in Figure 15 below, the National Guard locations on the outskirts of the city
were between 1.1 and 2.5 km from the mean point of impact in the Vostochniy
neighbourhood.
144 See Samolenkov Report, paras. 157–158 (Russia’s Counter-Memorial Part I, Annex 2). General
Samolenkov returns to this theme in paragraphs 176 and 177 of his report.
145 It takes 10 minutes to reload BM-21 from its accompanying ammunition vehicle.
146 Samolenkov Report, para. 170 (Russia’s Counter-Memorial Part I, Annex 2).
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Figure 15. Distance from mean point of impact in the Vostochniy neighbourhood to
Ukrainian National Guard locations (Geollect Figure 26).147
147 Reproduced from Gwilliam and Corbett Report, Figure 26 (Ukraine’s Reply, Annex 2).
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30. The shelling of the residential areas could not have been a discriminate
attempt to target any of these nearby military positions, let alone Company Position 4013;
the miss distance is too great to be put down to unfortunate technical error. In an attempt to
break down the main components, or “error budget,”148 of General Samolenkov’s hypothesis:
a. Human Error (“Miscalculated Target”). General Samolenkov’s suggestion
that the attack could be explained by an “error of fire preparation”149 is
implausible. As Russian artillery doctrine regarding the BM-21
emphasizes, the fundamental principle of fire preparation is that “[t]he
accuracy of the fire depends on the timeliness, completeness and
thoroughness of the execution[,] measures for the preparation of firing
and fire control, on the method used determination of installations for
firing and the possibility of their refinement in the course of firing.”150
The potency of artillery weapons systems is such that this fundamental
principle is hammered into artillerymen, irrespective of nationality,
throughout their training. All the elements below are double- if not triplechecked
in the firing process:
i. Incorrect Coordinates of the Firing Position. If incorrect
coordinates for the firing position are used for the calculation
of firing data, the error will be mirrored at the target end (i.e.,
for every metre of error in the coordinates of the firing
position, the shells or rockets will land a metre from the
intended target). The mean point of the shelling of the
residential area was approximately 200 metres northwest of
the Kyivski market,151 2.5 km from Company Position 4013;
that implies a 2.5 km error in the battery commander’s
coordinates of his own firing position. I have made such an
error, pre-GPS, in the featureless terrain of arctic Norway; it
was immediately picked up by the double-check procedures.
The probability of such an error occurring in the terrain
concerned in this attack is unconscionable, especially since the
tactical situation had been relatively static for a considerable
time, providing the opportunity, indeed requirement, to
conduct full preparation, including accurate survey, of firing
positions. General Samolenkov’s hypothesis on this issue152 is
implausible. Even if the firing unit came in from outside the
region immediately prior to the attack, properly conducted
pre-firing double-checks should have alerted commanders to
the potential error and corrected it.
148 The components which account for the distribution of the fall of shot of any weapon system.
149 Samolenkov Report, paras. 171(f)–172 (Russia’s Counter-Memorial Part I, Annex 2).
150 Ministry of Defense of the Russian Federation, Manual for the Study of the Rules of Firing and
Fire Control of Artillery (PSiUO-2011) (2014), Chapter 1, Art. 1 (Ukraine’s Reply, Annex 61).
151 At the intersection of Yasniy and Kyivska Boulevard.
152 See Samolenkov Report, para. 171(f) (Russia’s Counter-Memorial Part I, Annex 2).
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ii. Incorrect Coordinates of the Target. If Company Position 4013
was the intended target, the attackers would have had its
precise coordinates as this target had been engaged by BM-21
on at least one previous occasion.153 Similarly, if Checkpoint
No. 4014 was the intended target, its successful engagement
later on 24 January 2015154 is evidence that DPR had its
accurate coordinates. The suggestion that Kirsanov
deliberately misled the DPR by providing incorrect target
coordinates155 should therefore not have swayed the attackers
from coordinates they knew to be accurate from previous
attacks. If Kirsanov was so callous as to provide target
coordinates in the middle of a residential area, the doublechecks
required of the firing unit would in any case have
highlighted the error.
iii. Incorrect Firing Data. The 2.5 km distance between the centre
of Company Position 4013 and the mean point of impact of the
attack on the residential area equates to a difference in
launcher elevation of 82 mils (5 degrees) at the firing range
deduced from the Ukrainian Security Service crater analysis,156
plus up to 122 mils (7.3 degrees) of line error if the deduced
firing direction157 is accepted. The reason modern artillery
sights are calibrated in mils, rather than degrees, is that
technical advances make these artillery systems capable of
being accurate to a much greater extent. Moreover, such errors
are easily visible in the pre-firing checks required of the battery
commander.
iv. Incorrect Meteorological Data. Meteorological conditions,
including the wind, barometric pressure and temperature,
affect the flight of a rocket. Preparation of fire requires the
input of those conditions into the calculation of ballistic firing
data. The fact that several other military targets were
accurately engaged by BM-21 Grad on 24 January 2015
suggests that meteorological data was available to the firing
units. The meteorological conditions on that day were not
extraordinary: even if the attackers failed to input the
meteorological data into the firing computation, which would
itself be further evidence of knowingly indiscriminate action,
the difference at the target end might be measured in tens or
possibly hundreds of meters, rather than thousands.
153 See Bobkov Report, para. 75 et seq. (the September 2014 video which Bobkov was directed to
analyse) (Russia’s Counter-Memorial Part I, Annex 1).
154 See OSCE, Spot report by the OSCE Special Monitoring Mission (SMM), 24 January 2014:
Shelling Incident on Olimpiiska Street in Mariupol (24 January 2015) (Ukraine’s Memorial, Annex
328).
155 See Samolenkov Report, para. 185(d) (citing Annex 213 to Ukraine’s Memorial) (Russia’s Counter-
Memorial Part I, Annex 2).
156 See Brown First Report, para. 47 (16.4 to 17.8 km) (Ukraine’s Memorial, Annex 11).
157 See ibid., para. 46.
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41
b. Equipment Malfunction. The checking of sight alignment is a required
element of preparation to fire. General Samolenkov’s suggestion that “not
only that the operator may have made a mistake, but also machines may
have been out of order”158 merely adds weight to Ukraine’s claims of
indiscriminate targeting or worse: it would mean that DPR commanders
engaged targets on the outskirts of a city with equipment that was out of
order or had not been calibrated, knowing that such errors could cause
civilian casualties.
c. Multiple Equipment Malfunction. If one launcher was malfunctioning, as
suggested by General Samolenkov’s presentation of “intercept evidence
that ‘Yugra’ informed the unit commander that one vehicle was
overshooting,”159 that could not account for the number of rockets that
impacted the residential area. Moreover, if “one vehicle was
overshooting,” the inference is that the other launchers were firing
accurately; however, there appears to be no evidence of successful
contemporaneous engagement of a military target. All the rockets from
this attack appear to have landed in the residential area. All the launchers
appear to have fired coherently, resulting in a fall of shot pattern
consistent with firing tables: if launchers were “out of order,” the
likelihood of the nature of their damage resulting in a single consistent
error across at least four launchers160 is implausible. An inconsistently
large spread of the fall of shot would be expected.
31. Indeed, the more “error budget” factors involved, the wider the likely fall of
shot pattern. But the attack on the residential area of Mariupol produced a normal,
predictable fall of shot pattern. General Samolenkov’s logic161 therefore lacks technical
rigour in this respect.
32. Avoidance of Civilian Casualties. Russian doctrine provides that casualties
and damage outside the intended target area can be avoided, or at least minimised, by the
adoption of several procedures:
a. Observed and/or Adjusted Fire. Under Russian doctrine, “[z]eroing in on
[adjusting] a target is the most accurate way to determine target shooting
settings. Zeroing in is used in conditions of low enemy fire resistance,
when hitting targets unable to change location in a short time.”162 It is
necessary to make a clear distinction here between, on the one hand, an
158 Samolenkov Report, para. 171(d) (Russia’s Counter-Memorial Part I, Annex 2).
159 Ibid.
160 See Brown First Report, para. 43 (Ukraine’s Memorial, Annex 11).
161 See Samolenkov Report, para. 172 (Russia’s Counter-Memorial Part I, Annex 2).
162 Ministry of Defense of the Russian Federation, Rules of Firing and Fire Control of Artillery
(PSiUO-2011) (2011), Section 1, Chapter 1, para. 7 (Ukraine’s Reply, Annex 60).
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observer who adjusts the fire onto a target and corrects fire that is
inaccurate, and on the other hand, someone who merely reports the result
of an attack.163 If observers had adjusted the fire away from the
residential area, it would be evidence of an attempt to avoid or minimise
civilian casualties,164 but I can see no evidence that adjustment was used
in this attack: on the contrary, the suddenness of the attack is indicative of
the failure to adjust fire. General Samolenkov suggests that spotters were
used by the DPR but admits “it is difficult to say whether the spotters
assisted in good faith.”165 General Samolenkov also questions the
availability of UAVs to observe and adjust the DPR fire, but it is clear from
the evidence in the Kramatorsk attack just a few weeks later that such
capability existed.
b. “Danger Close” Procedure. If the BM-21 commander believed there was
any danger to the civilian population, he could have used “Danger Close”
procedures designed to minimise damage or casualties amongst friendly
forces or non-combatants:
“To ensure the safety of his troops, when firing at targets located
near them, the division (battery) commander must:
- apply the most accurate ways to determine the settings
for shooting;
- appoint shells and charges that provide the least
dispersion; . . .
- start zeroing in with the expectation of getting the
deviation of the first explosion from the target in the
direction opposite to own troops.”166
There is no suggestion in the evidence or General Samolenkov’s report
that any of these measures were taken in this attack.
c. Converging the Fire. It is normal for the guns, mortars, or MLRS in a
battery to fire in parallel, thereby achieving the optimum spread of fire
consistent with the dimensions of the target and the lethal splinter
distance of the munitions; however, where the target is smaller than the
optimum size for the weapon system, the firing bearings of individual
guns, mortars or launchers can be converged such that the fire is
concentrated on a smaller area. As stated in Russian doctrine, “[w]hen
firing at a target whose frontal and depth dimensions do not exceed the
minimum, the battalion fires overlay batteries on one sight setting with a
concentrated fan.”167
163 There is evidence of DPR informers inside Mariupol, but their role appears to be limited to
reporting the results of attacks to DPR fighters.
164 Observation is therefore an additional way of correcting technical errors such as described in
paragraph 30 above, including the rectification of incorrect target coordinates such as Kirsanov
suggests he provided.
165 Samolenkov Report, para. 185(d) (Russia’s Counter-Memorial Part I, Annex 2).
166 Ministry of Defense of the Russian Federation, Rules of Firing and Fire Control of Artillery
(PSiUO-2011) (2011), Section 1, Chapter 1, para. 10 (Ukraine’s Reply, Annex 60).
167 Ibid., Section 6, Chapter XVII, para. 410.
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33. We know that military targets close to the residential area168 were accurately
engaged without apparent civilian casualties both before and after the attack on the
residential area. There appears to be no evidence to confirm whether the attackers used any
of the methods above to avoid civilian casualties, but these other attacks show an ability to
avoid civilian casualties. They also belie General Samolenkov’s claim that “Checkpoint No.
4014 . . . was located in dangerous vicinity from the residential area”169 and the resultant
Counter-Memorial claim that “some of these positions are in close proximity to the
Vostochniy residential area, in places as close as around 250 m, 450 m and 600 m (positions
Nos. 22, 23 and 25 in the Bobkov Report, respectively). Based on the location of these
objects, if shelling from a north-eastern or eastern direction was directed at these targets, it
would follow that overshooting could have impacted the residential area beyond.”170
Checkpoint 4014 was only “dangerous” and “overshooting could have impacted the
residential area beyond” only if the prescribed procedures were not followed. Conscious
dispensation with these procedures equates to making no attempt to discriminate between
military targets and civilian residential areas. Furthermore, the intercept evidence171 hardly
suggests a careful military force committed to avoiding civilian causalities.
34. Choice of Weapon System Used. General Samolenkov contends that “[i]t also
does not follow from any materials that I have reviewed that artillery guns (such as D-30
guns to which General Brown refers) were available to the DPR forces in that region (para 54
of the Brown Report).”172 However, the Geollect Report identifies three possible D-30
artillery guns within DPR-controlled territory on 18 January 2015, less than 19 km from the
168 Including Checkpoint No. 4014 (the “northern checkpoint”/Bobkov Position 20) and the “Platoon
Position” (Bobkov Position 25/Kirsanov Judgment Point 6).
169 Samolenkov Report, para. 166 (Russia’s Counter-Memorial Part I, Annex 2).
170 Russia’s Counter-Memorial Part I, para. 422.
171 Intercepted Conversation between Sergey Ponomarenko and Oleksandr Evdotiy (23 January 2015),
p. 2 (quoted in paragraph 23 above) (Ukraine’s Memorial, Annex 418).
172 Samolenkov Report, para. 185(b) (Russia’s Counter-Memorial Part I, Annex 2).
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Vostochniy neighbourhood.173 Furthermore, Colonel Bobkov analyses two DPR artillery or
mortar battery positions in the area174 and, although no equipment is specified, the “Battery
Position 250 m to the south of Leninske, artillery or mortar battery position”175 is within D-
30 range of the targets involved. If, for example, the intended target had been Checkpoint
4014,176 approximately 150 x 100 metres in size, the more accurate gun artillery should have
been the clear choice of weapon system given that Russian doctrine stipulates that “[t]he
minimum dimensions of a group and individual target along the front and depth, when
assigning the expenditure of shells and the method of shelling it, are taken equal to: . . . 400
m - for medium-range and long-range rocket artillery of medium calibre [BM-21].”177
Company Position 4013178 is the only target which could doctrinally have justified attack by
BM-21; it covers approximately a square kilometre; however, its 2.5 km distance from the
mean point of impact in the residential area makes it an implausible target for the reasons
listed above.179
35. Summary of Conclusions on the Mariupol Shelling. The reports of General
Samolenkov and Colonel Bobkov and my subsequent discussions with UAF commanders at
the time of the shelling suggest the following more specific conclusions, consistent with my
first report:180
a. The shelling of civilian residential areas of Mariupol on 24 January 2015
was carried out using multiple BM-21 Grad MLRS firing high explosive
fragmentation rockets fired from DPR-held territory.
173 See Gwilliam and Corbett Report, para. 67 (Ukraine’s Reply, Annex 2); ibid., Figure 30.
174 See Bobkov Report, Figure 25 and Table 5 (Positions 5 and 13) (Russia’s Counter-Memorial Part I,
Annex 2).
175 Bobkov Report, Figure 25 and Table 5 (Serial 13) (Russia’s Counter-Memorial Part I, Annex 2).
176 The “northern checkpoint”/Bobkov Position 20.
177 Ministry of Defense of the Russian Federation, Rules of Firing and Fire Control of Artillery
(PSiUO-2011) (2011), Section 6, Chapter XVII, para. 409 (Ukraine’s Reply, Annex 60).
178 Bobkov Position 17.
179 Figure 15 above gives a good feel for the dynamics of this point.
180 See Brown First Report, paras. 56–59 (Ukraine’s Memorial, Annex 11).
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45
b. The main thrust of the planned DPR attack at Mariupol was not a direct
assault on the city: attackers and defenders had concluded that the most
efficient approach, in terms of the attackers’ likely casualties and
equipment damage, would be to outflank the city across the open ground
to the north. In that context, any attack towards Vostochniy was
inconsistent with the main effort of the DPR objective. Given that there
was no simultaneous or prior artillery attack on the front-line defensive
position181 forward of Checkpoint 4014182 and no ground assault towards
Vostochniy, there was no military advantage in shelling Checkpoint 4014
or the surrounding positions183 at that time.
c. The National Guard positions which the evidence suggests, and the
Counter-Memorial claims, were justifiable military targets are all well
outside the maximum fall of shot pattern from the mean point of impact
of the 24 January 2015 shelling of the residential area of Mariupol. The
multiple errors, of whatever nature, required for the shelling of the
residential area to be considered a targeting “mistake” would be
egregiously indiscriminate beyond the bounds of technical error by any
trained artillery unit intent on shelling the military targets, particularly
the position believed by General Samolenkov to have been the intended
target.184 Indeed, the DPR fighters had demonstrated that they could
accurately target the nearby military positions both before and after the
shelling of the civilian area.
d. The dispersion of the fall of shot of BM-21 Grad and its unadjusted
method of fire in this attack were incapable of targeting Checkpoint 4014
without hitting the residential area even if the targeting process had been
accurate.185 The attackers would have known, or should reasonably have
known, that their fire would impact the residential area.
e. In my opinion there are three plausible explanations for the 24 January
2015 attack on the residential area of Mariupol:
i. The attackers deliberately targeted the civilian residential areas
to terrify the population and/or cause evacuation of the city in
order to facilitate its capture; or
ii. The attackers were unconcerned and indiscriminate as to what
they hit on the eastern edge of the city even though it was
obvious that it was a residential area: shelling of anything in
that area would give the impression that an attack on the city
was under way, thereby diverting attention from their likely
objective, an outflanking manoeuvre around the northern
outskirts of the city; or
181 Company Position 4013 (Bobkov Position 17).
182 The “northern checkpoint”/Bobkov Position 20.
183 Bobkov Positions 19–23.
184 Company Position 4013 (Bobkov Position 17) (2.5 km from the mean point of impact of the attack
on the residential area).
185 In fact, no rockets appear to have fallen closer than 575 metres from Checkpoint 4014 (the
“northern checkpoint”/Bobkov Position 20).
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iii. The attackers targeted one of the military targets within a
kilometre of the residential area, knowing that their weapon
system and method of targeting could not avoid impacting the
residential area (I assess this as the least likely explanation
given that the mean point of impact of the attack was outside
the maximum fall of shot pattern from these military targets,
some of which were accurately targeted before and after the
attack on the residential area, and would have involved
multiple egregious failures to apply the rules for firing).
IV. SHELLING OF RESIDENTIAL AREA OF KRAMATORSK — 10 FEBRUARY 2015
36. Common Ground Between My First Report and Russia.
a. The weapon used was BM-30 Smerch186 firing 9M55K rocket munitions.187
b. The spread of the cluster munitions that impacted on Kramatorsk could
not have come from a single 9M55K rocket: the impact pattern indicates
that more than one rocket impacted on the civilian residential area of
Kramatorsk.188
c. As stated by General Samolenkov, “the impact pattern suggests a general
bearing from the south-east.”189 There is no suggestion that the shelling
could have been carried out by Ukraine. “On the assumption that the
attack could only be organised by the DPR, [General Samolenkov] agree[s]
that the range must have been more than 50 km.”190
d. General Samolenkov “agree[s] with [my] conclusion that ‘there is no
evidence of any military targets in the residential area of Kramatorsk that
would justify targeting it with a BM-30 salvo’191 . . . the police department
(Mayakovskogo Street), conscription centre building (Druzhby Street) or
the Border Service building (Heroev Ukrainy Street) do not appear to have
been suitable targets for such attack.”192 Use against these minor
installations in Kramatorsk would make no military sense.
186 See Samolenkov Report, paras. 204, 234 (Russia’s Counter-Memorial Part I, Annex 2).
187 See ibid., para. 209.
188 See Russia’s Counter-Memorial Part I, para. 465.
189 Samolenkov Report, para 212 (Russia’s Counter-Memorial Part I, Annex 2).
190 Ibid., para. 219. Paragraph 65 of my first report concluded that the attack had been conducted “a
firing range of between 50 and 70 km.” Brown First Report, para. 65 (Ukraine’s Memorial, Annex 11).
191 Samolenkov Report, para. 201 (quoting paragraph 67 of my first report) (Russia’s Counter-
Memorial Part I, Annex 2).
192 Samolenkov Report, para. 236 (Russia’s Counter-Memorial Part I, Annex 2). In addition to their
unsuitability, these installations are doctrinally too small to be engaged with BM-30 Smerch. See
Ministry of Defense of the Russian Federation, Rules of Firing and Fire Control of Artillery (PSiUO-
2011) (2011), Section 6, Chapter XVII, para. 409 (Ukraine’s Reply, Annex 60).
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37. Russia’s Thesis. Russia believes there is insufficient evidence to assess
whether the shelling of the residential area was separate from the attack against Kramatorsk
Airfield,193 and General Samolenkov states that “the damage to civilian areas of Kramatorsk
most likely resulted from mistakes in targeting and/or (more likely) malfunction or failure of
the on-board range adjustment equipment”194 or old/faulty munitions.195 General
Samolenkov also states that because he was not provided with any detailed account of the
impact at the Kramatorsk airfield, he is unable to make an assessment regarding the
targeting scheme and potential errors that could have led to the impact in the residential
neighbourhood.196
38. BM-30 Firing Position. Having conceded “that the impact pattern suggests a
general bearing from the south-east,” General Samolenkov heaps academic obfuscation on
the obvious conclusion: if the weapon system was BM-30, the origin of fire was southeast
and the UAF did not shell their own higher headquarters, the shelling must have originated
from DPR-held territory.197
39. Analysis of the Shelling. The Counter-Memorial leverages General
Samolenkov’s comments on the discrepancy in the number of impact sites at the airfield and
residential area of Kramatorsk198 as “complicat[ing] any meaningful analysis at this stage.”199
An exact reconstruction of this BM-30 Smerch attack, particularly in terms of numbers of
rockets, is more difficult than BM-21 for the simple reason that the 1.75 kg BM-30 Smerch
193 See Russia’s Counter-Memorial Part I, para. 458.
194 Samolenkov Report, paras. 192, 237 (Russia’s Counter-Memorial Part I, Annex 2).
195 See ibid., paras. 225–227.
196 See ibid., para. 208.
197 See ibid., paras. 213–215. His comments on wind appear to ignore paragraph 68 of my first report.
See Brown First Report, para. 68 (“The wind at the time of the attack was 3 metres/second from the
south.”) (Ukraine’s Memorial, Annex 11).
198 See Samolenkov Report, para. 211 (Russia’s Counter-Memorial Part I, Annex 2).
199 Russia’s Counter-Memorial Part I, para. 465.
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cluster munition creates a smaller crater200 than the 18.4 kg warhead of a BM-21 Grad
rocket. BM-30 Smerch cluster munition craters are therefore inherently more difficult to
locate either by overhead imagery or inspection on the ground,201 particularly in soft terrain.
The vertical descent of the BM-30 cluster munitions, once released from the rocket, also
makes deductions on the direction of fire less accurate than BM-21.202 Having again
questioned the Ukrainian Security Service and also eyewitnesses on the airfield at the time of
the attack, I note the following:
a. As with the attack at Volnovakha, the Ukrainian Security Service
investigation was primarily focused on evidence of impacts that killed or
injured civilians and damaged civilian property. Moreover, the
investigation of the casualties and damage on the aerodrome appears to
have been carried out separately by the military authorities.203 The
Security Service report204 is therefore an incomplete picture. Video
evidence confirms this.205 General Samolenkov makes the obvious and
unremarkable conclusion that “neither of the impact sites in the
200 Even on hard surfaces, the typical BM-30 cluster munition crater is approximately 30 x 30 cm.
201 Crater analysis of the attack on Kramatorsk is missing from Colonel Bobkov’s report, unlike
Volnovakha where he selectively analyses craters around forward positions, but not around the Buhas
checkpoint. Colonel Bobkov’s video footage of cluster munition impacts is all on hard surfaces at the
Kramatorsk airfield where the “splash” is evident. See Bobkov Report, pp. 101–107 (Russia’s Counter-
Memorial Part I, Annex 1). All of the evidence of craters in soft ground analysed by the Ukrainian
Security Service appears to relate to carrier elements. See Record of Site Inspection Conducted by
A.A. Kholin, Major of Justice and Senior Investigator with the Operative Unit of the Investigative
Department of the Security Service of Ukraine in Donetsk Oblast (12 February 2015) [hereinafter
Kholin Report] (Ukraine’s Memorial, Annex 105).
202 The Ukrainian Security Service reached a similar conclusion. See Expert Opinion No. 193, drafted
by Oleksiy Bordunos, drafted by the Ukrainian Scientific Research Institute of Special Equipment and
Forensic Expert Examination, Security Service of Ukraine (24 April 2015), p. 116, Conclusion 6
(“Based on the inspection and the objects found during the inspection, it is not possible to draw any
conclusions as to the angle of incidence of the munitions whose detonation was recorded during the
inspection.”) (Ukraine’s Memorial, Annex 121). That said, as I explained in paragraphs 64 and 65 of
my first report, the correlation between cluster munition craters and debris from the carrier elements
of the rocket indicates the general direction of fire, albeit subject to the unpredictability of the flight of
the carrier elements once the cluster munitions have been discharged. See Brown First Report, paras.
64–65 (Ukraine’s Memorial, Annex 11). None of my deductions on direction of fire in the attack on
Kramatorsk rely solely on crater analysis.
203 See Witness Statement of Kyrylo Ihorevych Dvorskyi, para. 5 (Ukraine’s Memorial, Annex 3).
204 See Kholin Report (on which Ukraine’s Memorial, Annex 27 is based) (Ukraine’s Memorial, Annex
105).
205 See The Guardian, Rockets Hit Residential Area in Kramatorsk, Ukraine (video) (10 February
2015).
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49
residential areas identified by Ukraine’s inspection reports represents a
full impact field for even a single rocket.”206
b. The estimate from the professional UAF rocket artillery battery
commander stationed on the aerodrome at the time of the attack is that
between six and 12 rockets207 landed within the perimeter of the
aerodrome. This makes more sense doctrinally208 and makes
reconciliation of the military casualty figures more credible.209
40. In 2018 I had insufficient independent information to substantiate the
conclusion reached by the Ukrainian Security Service that “at least 16 [rockets] . . . were fired
from two or more Smerch.”210 I could see clear evidence of between two and four rockets
having impacted the residential area and, given that I then had no evidence of numbers of
rockets impacting the aerodrome other than the Ukraine Security Service reports which
accounted for no more than one rocket, I concluded that “[a]t least three, more likely five, of
which at least two, more likely four, impacted in the residential area.”211 This conclusion was
supported by the evidence of five rocket tail fin elements found after the attack.212 Each
rocket carries 72 sub-munitions (cluster munitions), so there should have been at least 360
impacts: the Ukraine Security Service map details only 71 impacts, 21 of which are carrier
elements, leaving 50 sub-munition (cluster munition) craters, of which 39 impacted the
residential area. Given that the BM-30 Smerch cluster munition is less than 10% of the
206 Samolenkov Report, para. 210 (Russia’s Counter-Memorial Part I, Annex 2).
207 Carrying a total of between 432 and 864 cluster munitions.
208 A simplistic deduction that 58 impact points on the residential areas implies an attack by one
rocket runs counter to doctrine as well as the ballistic characteristics of the 9M55K rocket. The
doctrinal ammunition consumption rates for BM-30 are classified, but Table 16 of the Russian
Federation Ministry of Defence Rules of Firing and Fire Control of Artillery document shows that 3 x
BM-22 Urugan cluster munition rockets (the nearest comparable system) per hectare would be the
norm for a target consisting of command posts such as existed on around 20 hectares of the
aerodrome. See Ministry of Defense of the Russian Federation, Rules of Firing and Fire Control of
Artillery (PSiUO-2011) (2011), Table 16 (Ukraine’s Reply, Annex 60).
209 Eight deaths, 33 injuries and significant damage to military equipment.
210 Expert Opinion No. 193/1, Ukrainian Scientific Research Institute of Special Equipment and
Forensic Expert Examination of the Security Service of Ukraine (29 April 2015), p. 8 (Ukraine’s
Memorial, Annex 121).
211 Brown First Report, para. 60, n.68 (Ukraine’s Memorial, Annex 11).
212 See Kholin Report, paras. 1, 4, 11, 15, 26 (Ukraine’s Memorial, Annex 105).
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weight of a BM-21 warhead, it should not be surprising that only 10% of the cluster munition
craters were identified in the Ukraine Security Service analysis.
41. Spread of the Cluster Munitions. The Ukrainian Security Service’s discovery
of the tail fins of at least five rockets leads to the only plausible deduction that at least 321
cluster munitions landed harmlessly. The ground between the aerodrome and the
residential area consists of open fields, garages and a cemetery; the further east you go, the
more open the ground becomes. We know that rocket carrier elements landed in these
areas213 so it should be unsurprising that cluster munitions also landed here. Indeed, it is
clear from video evidence that the Rybalko Street garage area was hit by many more cluster
munitions214 than the three shown in the Security Service report.215 Moreover, if the fall of
shot pattern for BM-30 Smerch firing at a range of 70 km216 is compared to the lateral
dispersion of the cluster munitions impacts in the residential area (0.6 km wide)217 that were
analysed in the Ukraine Security Service report, the spread of impact craters analysed in the
Ukraine Security Service report would be expected to account for no more than 50% of the
total.
213 See ibid., paras. 12, 17–19, 28.
214 See The Guardian, Rockets Hit Residential Area in Kramatorsk, Ukraine (video) (10 February
2015).
215 See Kholin Report, paras. 17–19 (Ukraine’s Memorial, Annex 105).
216 Figure 3 from my first report, reproduced here as Figure 16.
217 See Brown First Report, para. 72 (Ukraine’s Memorial, Annex 11).
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Figure 16. Diagram (to scale) showing fall of shot pattern created by 300mm 9M55K
rockets at 70 km range using firing table data.218
218 See Extract of Smerch Firing Table, Ministry of Defense of Ukraine (March 2018) (Ukraine’s
Memorial, Annex 656).
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52
42. Overlaying fall of shot ellipses onto satellite imagery of Kramatorsk with one
ellipse over the centre of the aerodrome, a second ellipse centred on the dispersal area in the
northwest sector of the aerodrome and a third ellipse over the residential area, illustrates
three deductions:
Figure 17. Graphic illustrating the maximum area of cluster munition damage that
could have resulted from a single “rogue” rocket (Geollect Figure 39).219
219 Reproduced from Gwilliam and Corbett Report, Figure 39 (Ukraine’s Reply, Annex 2).
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a. The cluster munitions and rocket elements found among the garages on
Rybalko Street220 could arguably be collateral damage from an attack on
the northwest sector of the aerodrome. If this was the case, the damage to
civilian property could nevertheless have been avoided, or at least
mitigated, if the centre of the airfield, rather than the northwest sector,
had been targeted221 as is evident from the comparison of the spread of the
two ellipses above. If the attackers had wanted to target the northwest
sector of the airfield while minimising damage to the civilian residential
area, this could have been achieved by careful targeting such that the
ellipse covered the northwest sector of the airfield but did not impinge
into the civilian residential area.
b. The impacts further northwest in the residential area cannot be collateral
damage from an attack on any part of the aerodrome. General
Samolenkov accepts that “the sub-munitions from one salvo of BM-30
cannot fall 5 km from each other,”222 but uses the discrepancy in
impact/crater numbers in an attempt to undermine the consistency of
Ukraine’s case without offering a plausible alternative. He simply states:
“I do not understand why it is so.”223
c. The group of cluster munition impacts on Druzhby (formerly Lenin)
Street224 is approximately 2 km from the group on Kramatorsk
Boulevard,225 greater than the 1,840 metre 100% range spread for a single
rocket illustrated in Figure 17 above. This led to my conclusion that the
cluster munitions in the residential area came from “at least two”
rockets.226 This is illustrated in Figure 18 below:
220 See Kholin Report, paras. 17–19 (Ukraine’s Memorial, Annex 105). But it is clear that many more
cluster munitions impacted in this area. See, e.g., The Guardian, Rockets Hit Residential Area in
Kramatorsk, Ukraine (video) (10 February 2015).
221 See paragraph 47(a) below.
222 Samolenkov Report, para. 221 (Russia’s Counter-Memorial Part I, Annex 2).
223 Ibid., paras. 210–211.
224 See Kholin Report, paras. 2–3 (Ukraine’s Memorial, Annex 105).
225 See ibid., paras. 7, 14, 23.
226 Brown First Report, para. 60, n.68 (Ukraine’s Memorial, Annex 11).
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Figure 18. Graphic illustrating the plausible area of cluster munition damage that could
have resulted from at least two rockets targeted at the residential area in addition to
those targeted at the aerodrome (Geollect Figure 40).227
227 Reproduced from Gwilliam and Corbett Report, Figure 40 (Ukraine’s Reply, Annex 2).
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A BM-30 Smerch launcher is not capable of engaging different targets
simultaneously with 9M55K rockets in the same salvo.228 There is
evidence to suggest that the attack consisted of two salvoes, five minutes
apart.229 The potential deductions therefore are that:
i. The attack on the residential area was perpetrated by a different
launcher (or launchers) from the attack on the aerodrome; or
ii. The launcher(s) engaged the residential area and the aerodrome
sequentially; or
iii. There was a common fault in more than one of the rockets targeted
at the airfield such that it overflew its intended target; however, I
believe this is implausible as explained below.
43. Faulty Ammunition. My experience, and having questioned Ukrainian rocket
artillery officers and munitions experts with extensive experience of the BM-30 Smerch
9M55K rocket and other Soviet-based MLRS systems, is that any obvious damage to a rocket
when delivered to the launcher, including being beyond its shelf-life,230 is an immediate
cause to reject the rocket. Specific areas of potential faults, none of which I believe are
plausible in this case, are:
a. Pre-Firing Diagnostic Checks. Once the rocket is prepared for firing in its
launcher tube, BM-30 Smerch connects the individual rockets to a
diagnostic and programming system designed to identify faults in the
electronics. Any fault identified would be evident to the commander of
the launcher and would prevent the rocket from firing. In the unlikely
event that faults in the rocket escaped these visual and diagnostic checks,
any unseen fault in the propellant or casing would typically cause the
rocket to drop short of its intended target, in practice shortly after launch.
There are no recorded or known incidents of a faulty rocket having
overflown its intended target — it would be ballistically implausible as
argued below — let alone overfly its target and then successfully deploy its
cluster munitions.
b. The Timer Mechanism. A 9M55K rocket targeted at a range of 70 km is
designed to open up and dispense its cluster munitions at a height of
4,847 metres.231 At that point its descent angle is -48 degrees and it is
1,254 metres short of the target to take account of the forward momentum
228 A change of bearing and elevation to engage a different target takes time, particularly if the correct
safety checks are carried out.
229 See Witness Statement of Kyrylo Ihorevych Dvorskyi (4 June 2018), para. 8 (Ukraine’s Memorial,
Annex 3).
230 See Samolenkov Report, para. 226 (Russia’s Counter-Memorial Part I, Annex 2). Firing a rocket
beyond its shelf-life would be knowingly indiscriminate.
231 See Extract of Smerch Firing Table, Ministry of Defense of Ukraine (March 2018) (Ukraine’s
Memorial, Annex 656).
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of the rocket which imparts forward movement to the cluster munitions
when they are ejected from the rocket, such that they hit the ground on
target. A timer mechanism could theoretically malfunction either prefiring
or in flight:
i. Pre-Firing Diagnostic Check. The timer mechanism of a 9M55K
rocket is part of the firing battery’s ballistic computation and is
automatically programmed by the launcher to open at the optimum
point for distribution of the cluster munitions. Any fault in the timer
mechanism would activate an alarm in the launcher cab such that
the rocket could not be fired.
ii. In-Flight. In the theoretically impossible event of a rocket with a
faulty timer mechanism being launched, the most likely outcome,
based on experience of electronic failures in other rocket fuse
systems, would be a complete failure of the timer mechanism,
resulting in the rocket continuing to the end its ballistic trajectory
without opening to dispense its cluster munitions. In the apparently
unprecedented event of a faulty timer mechanism causing the rocket
to open up and dispense its cluster munitions early,232 the cluster
munitions would land short and the fall of shot pattern would be
more scattered than optimal. If a faulty timer mechanism caused
the rocket to open up late,233 the cluster munitions would land
beyond the target in a more concentrated fall of shot pattern. Even
if the rocket continued its descent at the same angle designed for
optimum release234 it would fly a further 3,243 metres.235
Considering that the optimum opening point is 1,254 metres short of
the target, as described above, the rocket would therefore impact the
ground a maximum of 1,989 metres beyond the target. If it opened
up and dispensed its cluster munitions after the optimum opening
point but before it hit the ground, the design of the cluster munitions
would ensure they fell short of this overfly distance.
44. General Samolenkov’s proposition that the most likely cause of rockets
impacting the residential area was “malfunction or failure of the on-board range adjustment
equipment”236 is therefore ballistically implausible and unheard of in the experience of any of
232 I.e., at a greater than optimum height above the ground.
233 I.e., at a lower than optimum height above the ground.
234 -48 degrees at 4,847 metres above ground level. In practice, the rocket would not continue its
descent at the same angle: it would descend ballistically at an increasing angle such that the rocket
and its cluster munitions would land shorter than the overfly distances shown above (which were
presented purely to demonstrate that rockets properly targeted at the aerodrome could not have
caused the casualties and damage in the residential areas).
235 4847 cos 48 degrees.
236 Samolenkov Report, para. 237 (discussed further in paragraphs 225-230) (Russia’s Counter-
Memorial Part I, Annex 2).
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the experts I have interviewed or my own experience. Given General Samolenkov’s
acceptance that more than one rocket impacted the residential area, the unpredictable
nature of equipment failures, particularly due to old rockets not having been stored correctly,
makes the possibility that “[s]everal rockets at once could have exhibited the same
malfunctioning pattern, for instance, due to similar storage issues”237 incredibly unlikely.
45. Human Error. BM-30 is normally grouped into platoons of two or three
launchers operating together with a command post vehicle for communications, command
and control, including ballistic computation. This system allows a heavy weight of fire to be
delivered and the flexibility to engage different targets simultaneously with different
launchers within the platoon: flexibility which cannot be achieved with a single launcher.
Doctrinally therefore, it is more likely that this shelling was carried out by more than one
launcher, particularly for such a high-profile attack. As with faulty ammunition above,
specific areas of potential faults, none of which I believe are plausible in this case, are:
a. Pre-Firing Checks. Doctrine requires accuracy checks, often doublechecks,
at every stage of the firing process. For example, the alignment of
launchers within a platoon or battery is achieved initially by individual
artillery aiming circle compasses dedicated to individual launchers; a
second aiming circle compass operated by the command post crew then
double-checks the individual launchers and also ensures all launchers are
aligned not only accurately, but in parallel.238 Firing data is calculated and
cross-checked at command posts at both battery and battalion level.
b. Firing Checks. Once a firing bearing and elevation are ordered, the
application of that data is checked by the soldier on the launcher sight and
the launcher commander; it is then checked again by the battery
commander to ensure not only that it is correct, but also that all launchers
firing on the same target are aligned in parallel, both for bearing and
elevation.
46. Failure to conduct these checks in any of the nations with whose artillery
systems I have worked would not only be unprofessional on the basis that it would inevitably
lead to inaccurate and indiscriminate shelling; it would also be wasteful given the cost of the
237 Ibid., paras. 229–230.
238 The Soviet, Russian, and Ukrainian doctrine is even more stringent than NATO, UK or US doctrine
in this respect.
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rockets; but most importantly, the failure in the duty of utmost accuracy on all those
involved in the firing process of such a potent weapon system would automatically result in
disciplinary proceedings against those responsible. It is therefore hardly surprising that
General Samolenkov and I agree that unfortunate “human error in this case is less likely”239
on the basis that “the operators of the weapon systems could not normally have made that
many errors while preparing and aiming the launcher to account for the increase in range by
5 km . . . the totality of various errors made in the process of firing . . . even if they happen at
the same time, is very unlikely to lead to a cumulative increase in the distribution for range
to so large an extent.”240 However, the conclusion that, because the attacks on the residential
area occurred around the same time as the attack on the airfield, the attack on the airfield
was not a separate attack241 not only stretches the conclusion beyond General Samolenkov’s
judgement,242 it is also factually wrong. BM-30 platoons are perfectly capable of firing
multiple launchers on two or more separate targets if that was their objective; even more so
if, as the evidence suggests, there was a five minute gap between the attack on the residential
area and the attack on the aerodrome: more than enough time to switch targets. It would
therefore be easy to disguise an intention to fire on two relatively close targets and
subsequently claim that the result was an unfortunate or inevitable error, particularly where
the firing bearing remained unchanged and only the firing elevation needed to be altered.
47. Avoidance of Civilian Casualties in the Separate Attack on the Aerodrome.
There are two separate aspects of the avoidance of civilian casualties in the attack on the
aerodrome:
239 Samolenkov Report, para. 224 (Russia’s Counter-Memorial Part I, Annex 2).
240 Ibid., para. 223.
241 See Russia’s Counter-Memorial Part I, para. 461.
242 See Samolenkov Report, para. 203 (“It appears that the Kramatorsk airfield was shelled on 10
February 2015 at around the same time as the impact from Smerch rockets was registered in the
residential areas.”) (Russia’s Counter-Memorial Part I, Annex 2).
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59
a. Carrier Elements. For each 9M55K rocket, the “carrier elements rain 447
kg of scrap metal several kilometres beyond the target.”243 These carrier
elements can be as lethal and damaging as the cluster munitions. No
figures are available in firing tables for the distances which the carrier
elements travel once the rocket has discharged its cluster munitions
because they are no longer aerodynamic: they are unstable.244
Nevertheless, the same calculation concerning overflight used in
paragraph 43(b)(ii) above can be applied to these carrier elements to give
an indication as to where they should land: “a maximum of 1,989 metres
beyond the target” at a firing range of 70 km. Allowing for instability, it
would be reasonable to deduce that the carrier elements are unlikely to
land more than 2 km, and highly unlikely to land more than 3 km, from
the cluster munitions. This is illustrated in Figure 19 below by overlaying
this carrier element pattern onto Figure 18:
243 Brown First Report, para. 70 (Ukraine’s Memorial, Annex 11).
244 Hence the bearing and angle of impact of the nose cone or tail section/fins can be no more than an
approximate guide to the direction and range of fire, as opposed to BM-21 where there is a direct and
relatively accurate relationship between that data and the firing bearing and range.
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Figure 19: Fall of shot including carrier elements (Geollect Figure 41).245
245 Reproduced from Gwilliam and Corbett Report, Figure 41 (Ukraine’s Reply, Annex 2).
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In 2018 I was unable independently to substantiate the Ukrainian Security
Service illustration246 showing a correlation between the cluster munitions
and the carrier elements, not least because there were not enough cluster
munition impacts to justify a correlation to five tail fin impacts.247
However, the calculation above shows that it is highly unlikely that any of
the five tail fins accounted for by the Ukrainian Security Service in the
residential area could have come from rockets targeted against the
aerodrome. My conclusions are therefore that:
i. At least five rockets were targeted at the civilian residential
area; and
ii. The Ukrainian Security Service illustration248 is a reasonable
correlation between the cluster munitions and the carrier
elements that impacted in the residential area.
The only recorded carrier element impacts within a 3 km range of the
aerodrome are those in the southeast of the residential area.249 If those
carrier elements were from rockets which targeted the aerodrome, the
casualties and damage they caused in the civilian residential area were
nonetheless deliberate because their impact area was not only predictable
but also avoidable if areas other than the north western sector of the
aerodrome had been targeted.
b. Direction of Fire. The deduced firing bearing of 5,900 mils (332 degrees)
is ideal if the attackers wanted to disguise an intention to target the
civilian areas as well as the aerodrome by claiming it was an unfortunate
overshoot or even if they did not care about the inevitable casualties and
damage which would be caused by the carrier elements. General
Samolenkov contends that my suggested measures to minimize civilian
casualties and damage250 “could have attracted return fire from the UAF
positions near the frontline . . . [and] even fire on a bearing of around 345
degrees would have still jeopardised the private houses (Figure 20), if the
targets were close to the western part of the airfield.”251
i. The first of these arguments is callous: the firers were more
concerned for their own safety than for the safety of civilians.
They chose a launch site which they knew would result in
246 Expert Opinion No. 193/1, Ukrainian Scientific Research Institute of Special Equipment and
Forensic Expert Examination of the Security Service of Ukraine (29 April 2015), p. 122 (Ukraine’s
Memorial, Annex 121).
247 See Kholin Report, paras. 1, 4, 11, 15, 26 (Ukraine’s Memorial, Annex 105).
248 Expert Opinion No. 193/1, Ukrainian Scientific Research Institute of Special Equipment and
Forensic Expert Examination of the Security Service of Ukraine (29 April 2015), p. 122 (reproduced as
Figure 17 of the Samolenkov Report) (Ukraine’s Memorial, Annex 121).
249 See Kholin Report, paras. 10, 12, 17–19 (Ukraine’s Memorial, Annex 105). The remainder of the
carrier elements identified by the Ukraine Security Service are therefore likely to be from the rockets
which actually targeted the residential area.
250 See Brown First Report, para. 74 (Ukraine’s Memorial, Annex 11).
251 Samolenkov Report, paras. 232–233 (Russia’s Counter-Memorial Part I, Annex 2).
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civilian casualties and/or damage when they could have chosen
an alternative which would have mitigated, if not avoided, that
outcome.
ii. As to the second argument, even if the attack on the civilian
areas could be attributed to something other than deliberate or
indiscriminate targeting, which I do not believe is credible,
civilian casualties and damage could have been mitigated or
eliminated if the firing position had been further west252
and/or target selection had been restricted to the centre or
eastern end of the aerodrome. That approach, however, would
have made it more difficult to disguise the shelling of the
residential area by claiming it was an unfortunate overshoot
from the attack on the airfield.
48. Summary of Conclusions on the Kramatorsk Shelling.
a. The Kramatorsk residential area shelling was carried out using BM-30
Smerch MLRS firing at least five 9M55K high explosive cluster munition
rockets from DPR-held territory.
b. None of General Samolenkov’s arguments plausibly explain any part of
the rockets which landed in the city, particularly in the Druzhby Boulevard
neighbourhood. In my view the most plausible explanation is that both
the aerodrome and the residential area were the intended targets. When
writing my first report and drafting this current submission, I was at pains
to focus on the technical and doctrinal reasons why the attack on the
residential area could not have resulted from technical errors in order to
give the attackers the benefit of any doubt in the otherwise inevitable
conclusion that the civilian casualties and damage in the residential area
resulted from a deliberate callous attack. However, neither human error
nor technical malfunction could plausibly explain multiple BM-30 rockets
consistently overshooting their target by over 4 km or their cluster
munitions impacting in the same area. It is unfortunately not dissimilar
to the evidence emerging from the current war in Ukraine of liberal
Russian military use of rockets and cluster munitions in similar attacks on
residential areas.
c. Even if General Samolenkov’s thesis were true that “the damage to civilian
areas of Kramatorsk most likely resulted from mistakes in targeting
and/or (more likely) malfunction or failure of the on-board range
adjustment equipment”253 or old/faulty munitions254 and even if the
airfield had been the only intended target and that targeting had been
done accurately, the choice of weapon system meant that, in General
Samolenkov’s words, “the risk of rocket sections falling within the city is
actually considerable255 given the direction of fire and the proximity of the
252 Thereby resulting in a firing bearing greater than 332 degrees.
253 Samolenkov Report, para. 237 (Russia’s Counter-Memorial Part I, Annex 2).
254 See ibid., paras. 226–227.
255 I would argue inevitable.
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airfield to the city.”256 This attack was therefore by definition
indiscriminate, irrespective of the attackers’ intent, addressed above.
Given that the carrier elements are as much a part of the rocket as the
cluster munitions, the attackers would have known, or should reasonably
have known, that the carrier elements would inevitably impact the
southeast residential sector of the city. This outcome could have been
mitigated by choosing a different launch site to attack the airfield.
V. SHELLING OF CIVILIAN AREAS OF AVDIIVKA — JANUARY TO MARCH 2017
49. Common Ground Between My First Report and Russia. As General
Samolenkov states, “[i]t seems reasonable to assume, therefore, that the overwhelming
majority of the shellings were aimed at military targets.”257 The obvious corollary, as General
Samolenkov also acknowledges, is that there is evidence that “might indicate the nondiscriminatory
character of certain shellings.”258
50. Russia’s Thesis. Russia argues that because Ukraine failed to put into
evidence relevant information, Russia is not able effectively to respond to the allegations
regarding each shelling impact in my first report.259 The Counter-Memorial attempts to
refute my first report in two respects:
a. Lawful Collateral Damage. Russia claims that Ukraine was using civilian
areas/buildings for military purposes; civilian deaths and injury were
therefore inevitable, constituting lawful collateral damage.
b. Discriminate/Proportionate. Russia asserts that there is “no clear
evidence that a BM-21 was used in the shelling at the Khimik area of
Avdiivka.”260 General Samolenkov states that “close study of [the]
evidence does not confirm that those weapons [BM-21] were indeed used
in the shellings.”261
51. Tactical Situation. The fact that a battle was ongoing around Avdiivka in early
2017 is not in dispute. Much of the Counter-Memorial’s tactical scene-setting may be
256 Samolenkov Report, para. 231 (Russia’s Counter-Memorial Part I, Annex 2) (referencing paragraph
74 of my first report). Given that more than half the weight of the rocket consists of carrier elements,
five rockets would have rained down over two tonnes of metal on the residential areas.
257 Samolenkov Report, para. 253 (Russia’s Counter-Memorial Part I, Annex 2).
258 Ibid., para. 278.
259 See Russia’s Counter-Memorial Part I, para. 499.
260 Ibid., para. 505(c).
261 Samolenkov Report, para. 238(b) (Russia’s Counter-Memorial Part I, Annex 2).
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interesting but it is peripheral to the shellings in civilian residential areas away from the
battle. As General Samolenkov concedes, “[t]he shellings that I am invited to comment
upon, however, are further away from these frontline positions.”262
52. I said in my first report: “As this incident occurred in early 2017, it is still the
subject of ongoing investigations by Ukrainian authorities.”263 As further information has
come to light over the last four years, it has become evident that some of what was reported
in the immediate aftermath of the attacks is not as clear-cut as portrayed. Unlike the 2015
shellings of Volnavakha, Mariupol, and Kramatorsk where the military positions were
evidently separate from civilian residential areas, in Avdiivka the delineation between UAF
and civilian activity is more blurred. Colonel Bobkov has selected images which suggest that
UAF were using 15 Vorobiova Street to shelter vehicles, including tanks, during January and
February 2017. The then-commander of the 72nd Brigade, responsible for the defence of
Avdiivka at the time, has confirmed to me that, while his main positions were on the eastern
and southeastern edge of the town facing the threat across the industrial area and the main
Donetsk–Horlivka highway, buildings in Vorobiova Street and the surrounding area were
indeed used for his second echelon and reserves. Much time and effort could be spent in
analysing whether the attacks on these areas that caused civilian casualties and deaths264
could have been avoided by effective discrimination in terms of targeting and weapon
selection, but the outcome is likely to be a matter of opinion and conjecture rather than fact.
53. Nevertheless, the situation in Avdiivka cannot excuse indiscriminate shelling
of civilian areas which were not involved in the hostilities. General Samolenkov appears to
propose a blanket excuse for the civilian casualties and damage on the basis that “[i]n
general terms, it is not surprising to me that collateral damage to civilian objects took place
262 Ibid., para. 268.
263 Brown First Report, para. 79 (Ukraine’s Memorial, Annex 11).
264 See, e.g., ibid., para. 81(b).
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65
given the total number of explosions registered by the OSCE SMM.”265 My review of Colonel
Bobkov’s imagery shows no indication of military presence in significant parts of the city.
54. Shelling of Resupply Routes. Colonel Bobkov also adduces imagery
suggesting that Hrushevskoho Street was used as a thoroughfare for armoured vehicles,
presumably moving to and from the front-line. Having spoken with UAF commanders at the
time, the obvious routes through the town shown below on the map used by General
Samolenkov had been used to resupply and reinforce the front-line, but with unpredictable
frequency in order to minimise vulnerability, as would be expected in such a situation.
265 Samolenkov Report, para. 253 (Russia’s Counter-Memorial Part I, Annex 2). “In general terms” is
too crude a measure.
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66
Figure 20: Alleged UAF resupply routes marked by General Samolenkov on Annex 28 to
Ukraine’s Memorial (Samolenkov Figure 26).266
266 Reproduced from Samolenkov Report, Figure 26 (based on Annex 28 to Ukraine’s Memorial)
(Russia’s Counter-Memorial Part I, Annex 2).
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67
55. Accurate engagement of moving targets on resupply routes by artillery or
rockets is particularly contentious and difficult at the best of times,267 all the more so when
observation is restricted as it would have been in the urban environment of Avdiivka, even if
the DPR had observers inside the town. General Samolenkov believes “[i]t appears likely
that the DPR armed forces had the opportunity to detect military equipment supplying the
UAF frontline positions on the way to these positions.”268 However, his statement that the
“DPR armed forces could have received information about the movement of military
equipment from local residents, from the activities of reconnaissance groups operating near
the contact line or as a result of the use of UAVs”269 is not supported by the sources on which
he relies. “[D]isclosing information about military equipment in Avdiivka”270 or UAV
photographs of static vehicles does not amount to a capability to engage moving resupply
vehicles.
56. The key issue is not whether UAF resupply efforts could be detected and
reported: it is whether the DPR had the ability to target resupply convoys in a timely and
effective manner. Effective targeting of moving vehicles in an urban environment would
have required dedicated and well-practised observation, manned or unmanned, linked
directly to the firing battery. General Samolenkov cites no evidence of such a capability nor
of any successful engagement or disruption of UAF resupply. Absent that capability, trying
to engage moving vehicles is not only a waste of time and ammunition, it is guaranteed to do
267 The subject merits a separate chapter in the Russian Federation Ministry of Defence Manual for the
Study of the Rules of Firing and Fire Control of Artillery which acknowledges the requirement for
“high density of fire” using “no less than an artillery battalion.” See Ministry of Defense of the Russian
Federation, Manual for the Study of the Rules of Firing and Fire Control of Artillery (PSiUO-2011)
(2014), Chapter VIII, Art. 241–252 (Ukraine’s Reply, Annex 61).
268 Samolenkov Report, para. 273 (purportedly supported by footnotes 373 and 374) (Russia’s
Counter-Memorial Part I, Annex 2). I have little doubt that DPR supporters were making mobile
phone calls from Avdiivka, reporting UAF activity, but that does not amount to the capability to
engage moving resupply vehicles accurately.
269 Ibid.
270 Ibid., para. 273, n.373.
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68
more damage to civilian property along the routes than any unfortunate military vehicle that
happened to be in the target area when the attack occurred. That makes no military sense.
57. General Samolenkov’s conclusion that “General Brown does not consider the
need of supplying the frontline positions near Avdiivka (including transporting military
equipment through residential areas) and the deployment of military equipment in the
residential areas of Avdiivka”271 is therefore not true: on the contrary, my conclusion was that
none of the shelling incidents in the areas where there were possible supply routes appeared
from the evidence of their effect to have been sufficiently discriminatory to merit
categorisation as inevitable collateral damage. The shellings along these potential resupply
routes272 appear indiscriminate and speculative, rather than targeted at justifiable specific
military targets.
58. Shelling of Residential Areas Distant from UAF Positions or Resupply Routes.
The map above serves to highlight residential areas of Avdiivka where there were neither
UAF forces nor resupply routes. Colonel Bobkov’s choice of imagery and General
Samolenkov’s contentions on collateral damage predictably focus on the Khimik area of
western Avdiivka at the expense of other shelling incidents in civilian areas. General
Samolenkov’s claim that “only a relatively small number of explosions affected civilian
areas”273 is a callous attempt to excuse the apparently indiscriminate damage to these civilian
areas. Even a small number of rounds indiscriminately targeted at civilian areas can have a
terrorising effect on the population. The question is whether the damage to civilian areas
was unavoidable, both in terms of targeting and in choice of weapon system. There appears
to be no attempt in the Counter-Memorial to justify the attacks on Krasna and Zavodska
Streets or the suburbs further north (see Figure 21, below) on the grounds that they were
271 Ibid., para. 238(a); cf. ibid., para. 256(b).
272 E.g., the incidents referred to in paragraph 275 of General Samolenkov’s report. See Samolenkov
Report, para. 275 (Russia’s Counter-Memorial Part I, Annex 2).
273 Ibid., para. 253.
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69
close to UAF positions or resupply routes, even allowing for maximum errors of fire
preparation, as addressed below.
Figure 21: Shelling impacts documented in the northern residential area of Avdiivka.274
59. Indiscriminate Shelling. The Counter-Memorial offers several excuses for the
DPR artillery’s indiscriminate shelling:
a. Errors of Fire Preparation. General Samolenkov claims that “General
Brown considers only errors of fire dispersion, but does not consider
errors of fire preparation.”275 While I do not disagree with General
Samolenkov’s calculations,276 I do disagree with the requirement that they
should be applied in this situation. The tactical situation in the Avdiivka
sector, particularly in respect of DPR artillery firing positions several
kilometres behind the front-line, had been sufficiently stable for weeks, if
not months. General Samolenkov states that “complete preparation takes
274 See Ukraine’s Reply, Annexes 44–49, 51–55.
275 Samolenkov Report, para. 256(a) (Russia’s Counter-Memorial Part I, Annex 2).
276 See ibid., para. 258 et seq.
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around one and a half to two hours (sometimes more).”277 Failure to
conduct full firing preparations in such a stable tactical environment is
therefore in itself an admission of indiscriminate targeting. Moreover,
there was an even greater imperative to conduct full firing preparations in
the knowledge that targets were in dense urban areas close to civilians.
b. Observation of Fire. General Samolenkov accepts that “[t]argeting
preparation errors could, of course, be reduced in case the fire is observed
and adjusted. That, however, still implies that some shells will be fired
before the errors are corrected.”278 He speculates that “[i]t may be that
certain isolated hits resulted precisely from ranging before fire
adjustment.”279 There are, however, well-practised procedures to obviate
this. As Russian artillery doctrine lays down, “[t]o ensure the safety of his
troops, when firing at targets located near them, the division (battery)
commander must:
- apply the most accurate ways to determine the settings for
shooting;
- appoint shells and charges that provide the least dispersion;
- avoid switching from one charge to another and firing
different batches of charges;
- start zeroing in with a smoke projectile, if any;
- start zeroing in with the expectation of getting the deviation
of the first explosion from the target in the direction opposite
to own troops.”280
60. Weapon System Used. General Samolenkov claims “it is not clear to me why
General Brown assumes that the DPR had a wide choice of weapons. It appears that
alternatives (which are safer for the civilian population) should be considered in each case
based on (1) positions of the parties, (2) objectives of the shelling, and (3) weapons actually
available to the parties.”281 All sources suggest that the DPR fighters had mortars, tube
artillery, and BM-21 available in the Avdiivka sector and used all these weapon systems, as
well as direct fire weapon systems such as tanks, in the attacks on the civilian areas of
Avdiivka. Even the Counter-Memorial accepts that the DPR had howitzers available.282 In
277 Ibid., para. 262.
278 Ibid., para. 266.
279 Ibid., para. 370.
280 Ministry of Defense of the Russian Federation, Rules of Firing and Fire Control of Artillery
(PSiUO-2011) (2011), Section 1, Chapter 1, para. 10 (Ukraine’s Reply, Annex 60).
281 Samolenkov Report, para. 368 (Russia’s Counter-Memorial Part I, Annex 2).
282 Russia’s Counter-Memorial Part I, para. 477 (citing OSCE, Latest from the OSCE Special
Monitoring Mission to Ukraine (SMM), Based on Information Received as of 19:30, 5 February 2017
(6 February 2017) (Ukraine’s Memorial, Annex 347)).
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71
an effort to compare the ability of these weapon systems to discriminate between a legitimate
target and the civilian population, I used the diagram below in my first report:
Figure 22: Comparison (to scale) of fall of shot pattern created by 122mm rockets at 17.4
km (left) versus patterns created by 122mm artillery gun at 10 km (right top) and
120mm mortar at 4 km (right bottom).283
a. BM-21 Grad. Depending on the firing range, the fall of shot from BM-21
will cover approximately 100 hectares (1 square kilometre), more than 50
times the area covered by the example above of 122mm tube artillery
firing at a range of 10 km. It is hard to imagine any circumstances in
which BM-21 could be considered discriminate in the dense urban
environment of Avdiivka with a civilian population. Any use of BM-21 in
attacks on the residential area of Avdiivka, irrespective of whether the
intended target was military, was guaranteed to damage anyone or
anything, including civilians and civilian property, within its predictable
fall of shot. There is clear evidence that BM-21 was used in attacks on the
residential area of Avdiivka. General Samolenkov accepts that “in one
instance284 (not marked on the map in Annex 28 [to Ukraine’s Memorial])
the expert report is provided with some photographs of the shell
283 Reproduced from Figure 7 of my first report. See Brown First Report, Figure 7 (Ukraine’s
Memorial, Annex 11).
284 Expert Conclusion No. 77, drafted by M. Ustymenko and A. Pavlenko, Ukrainian Scientific
Research Institute for Special Equipment and Forensic Expert Examinations, Security Service of
Ukraine (3 March 2017) (Ukraine’s Memorial, Annex 167).
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72
fragments,”285 which the report describes as BM-21 projectiles.286 Other
reports also provide evidence of BM-21 attacks.287 General Samolenkov
attempts to cast doubt on these shellings with comments concerning dates
mentioned in the reports, some of which, I accept, is contradictory;
however, this is unsurprising given that the reports were compiled only
when the respective investigation organisations deemed it safe to attend
the sites of the shellings. The date issue does not make the observations
in the reports unreliable. There is clear evidence that between 27 January
and 1 February 2017288 Mendeleev,289 Kolosova,290 and Zavodska291 Streets
were attacked by BM-21 rockets, causing damage to civilian property and
terrorising occupants.292 Other reports of BM-21 involvement,293
including OSCE SMM and IPHR reporting,294 are contested by General
Samolenkov,295 but I see no sound basis to reject the OSCE SMM and
IPHR reporting.
b. Guns/Mortars. It does not follow that civilian casualties and damage to
civilian property are somehow discriminate just because systems other
than BM-21 were used. The question with guns and mortars is whether
the weapon used was least likely to result in civilian damage under the
circumstances and whether it was used in a way which was designed to
obviate or minimise civilian casualties.
285 Samolenkov Report, para. 296 (Russia’s Counter-Memorial Part I, Annex 2).
286 Expert Conclusion No. 77, drafted by M. Ustymenko and A. Pavlenko, Ukrainian Scientific
Research Institute for Special Equipment and Forensic Expert Examinations, Security Service of
Ukraine (3 March 2017), p. 1 (describing “parts of a body of a 122 mm unmanaged high-explosive
fragmentation projectile M-21 OF (product 9M22U)”) (Ukraine’s Memorial, Annex 167).
287 See Expert Conclusion Nos. 78–81 (Ukraine’s Memorial, Annexes 168-171).
288 Most likely the night of 30/31 January 17. See Signed Declaration of Hanna Mykolayivna
Fandeeva, Witness Interrogation Protocol (15 February 2017), p. 1 (Ukraine’s Reply, Annex 50).
289 Expert Conclusion No. 81, drafted by M. Ustymenko and A. Pavlenko, Ukrainian Scientific
Research Institute for Special Equipment and Forensic Expert Examinations, Security Service of
Ukraine (3 March 2017), p. 1 (Ukraine’s Memorial, Annex 171).
290 Expert Conclusion No. 77, drafted by M. Ustymenko and A. Pavlenko, Ukrainian Scientific
Research Institute for Special Equipment and Forensic Expert Examinations, Security Service of
Ukraine (3 March 2017), p. 1 (Ukraine’s Memorial, Annex 167).
291 Expert Conclusions Nos. 78–80 (Ukraine’s Memorial, Annexes 168-170).
292 See, e.g., Signed Declaration of Hanna Mykolayivna Fandeeva, Witness Interrogation Protocol (15
February 2017) (Ukraine’s Reply, Annex 50).
293 See Brown First Report, para. 80, n.86 (citing, inter alia, International Partnership for Human
Rights, Attacks on Civilian Infrastructure in Eastern Ukraine (2017), pp. 48–50 [hereinafter IPHR
Report] (Ukraine’s Memorial, Annex 454)) (Ukraine’s Memorial, Annex 11).
294 See, e.g., IPHR Report, p. 49 (“MLRS BM 21 Grad rockets fired from the east-south-east
(Yakovlika) confirmed by witnesses and crater analysis.”) (Ukraine’s Memorial, Annex 454).
295 Samolenkov Report, paras. 295–311 (Russia’s Counter-Memorial Part I, Annex 2).
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61. Conclusions on Avdiivka Shellings. As a result of greater clarity on issues that
were still emerging in 2018 and in response to the Counter-Memorial, I now make the
following further conclusions with regard to Avdiivka:
a. I agree with General Samolenkov that “the overwhelming majority of the
shellings were aimed at military targets”;296 however, “the nondiscriminatory
character of certain shellings”297 is evident, not just from
the result that damage to civilian property was caused, civilians were
killed, injured and terrified to the extent that they were evacuated from
the town,298 but also because the location of some attacks was so far from
UAF positions that I can find no military justification for the shelling.299
Civilian deaths, injury and damage could and should have been avoided.
b. The targeting of civilian areas of Avdiivka, through which UAF resupply
routes may have run, was speculative and indiscriminate by virtue of the
DPR having insufficient ability to effect timely targeting of legitimate
targets: they do not appear to have been capable of identifying resupply
vehicles and accurately engaging them before they had exited the target
area. As a result, civilians were killed and injured simply because they
lived close to a route that the UAF might possibly use at a time unknown
to the attackers: there appears no evidence of successful targeting of
legitimate military targets along these routes.
c. The attacks described in sub-paragraphs (a) and (b) above suggest that the
attackers did not care what they hit: damage to Avdiivka would serve a
purpose if it hit a military target, but it could also serve a purpose if it
frightened the civilian population into fleeing or sapped their support for
the UAF. I drafted this conclusion on receipt of Russia’s Counter-
Memorial in late 2021. I have not altered it in light of the events of 2022,
but its resonance in light of Russia’s tactics in Ukraine has been
sickeningly reinforced.
d. General Samolenkov’s suggestion that the DPR failed to conduct full
preparation of artillery systems, omitted to observe and adjust fire
wherever possible, and ignored “danger close” procedures where
appropriate is further evidence of indiscriminate shelling of civilian areas.
e. The use of BM-21 in attacks on the residential area of Avdiivka indicates
deliberate targeting of anyone or anything, including civilians and civilian
property, that the attackers knew, or might reasonably have known, lay
within its predictable fall of shot.
296 Ibid., para. 253.
297 Ibid., para. 278.
298 See OSCE, Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), Based on
Information Received as of 19:30, 6 February 2017 (7 February 2017) (“Officials in the mayor’s office
in Avdiivka told the SMM that 314 people had recently been evacuated from the town on 3 and 4
February.”) (Ukraine’s Memorial, Annex 348).
299 See Brown First Report, para. 95 (Ukraine’s Memorial, Annex 11).
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- 78 -
Annex 2
Expert Report of Catherine Gwilliam and Air Vice-Marshal
Anthony Sean Corbett (21 April 2022)
- 79 -
- 80 -
INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE
SUPPRESSION OF THE FINANCING OF TERRORISM AND OF THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL
FORMS OF RACIAL DISCRIMINATION
between
UKRAINE
and
THE RUSSIAN FEDERATION
EXPERT REPORT OF CATHERINE GWILLIAM AND
AIR VICE-MARSHAL ANTHONY SEAN CORBETT
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i
TABLE OF CONTENTS
I. Introduction ....................................................................................................... 1
A. Qualifications and Experience ............................................................... 1
B. Instructions ............................................................................................ 1
C. Methodology .......................................................................................... 2
II. Shelling of the Checkpoint Near Volnovakha — 13 January 2015 ..................... 5
A. Impact Location ..................................................................................... 6
1. Characteristics of the Buhas Checkpoint ................................... 6
2. Comparison with the DPR Checkpoint Near Olenivka ............. 17
3. Impact Analysis........................................................................ 21
B. Potential Point of Origin ...................................................................... 24
C. Conclusions .......................................................................................... 34
III. Shelling of the Residential Area of Mariupol — 24 January 2015 ................... 34
A. Impact Location ................................................................................... 35
1. Damage to the Vostochniy Residential Neighbourhood ......... 35
2. Analysis of Ukrainian National Guard Locations Near
Mariupol .................................................................................. 46
B. Potential Point of Origin ...................................................................... 52
1. Pre-Incident Point of Origin Analysis ...................................... 55
2. Post-Incident Point of Origin Analysis .................................... 59
C. Conclusions .......................................................................................... 62
IV. Shelling of the Residential Area of Kramatorsk — 10 February 2015 ............. 62
A. Impact Location ................................................................................... 63
1. Damage to Kramatorsk Residential Area ................................ 63
B. Potential Point of Origin ...................................................................... 72
1. Possible Firing Position 1 ......................................................... 74
2. Possible Firing Position 2 ........................................................ 77
C. Conclusions ..........................................................................................80
V. Statement of Truth ........................................................................................... 81
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ii
LIST OF FIGURES
Figure
No.
Title Page
Shelling of the Checkpoint Near Volnovakha - 13 January 2015
1 Features of the Buhas Checkpoint Identified on Satellite Imagery 8
2 Law Enforcement Vehicle Screening Features of the Buhas
Checkpoint
11
3 Images of Law Enforcement Presence at the Buhas Checkpoint 12
4 Open Source Images Corroborating Law Enforcement Vehicles at
the Buhas Checkpoint
13
5 Law Enforcement Vehicles Observed in Satellite Imagery of the
Buhas Checkpoint and Corroborated with CCTV and Open-Source
Video
14
6 Equipment Observed in Open-Source Imagery of the Buhas
Checkpoint that Is Not Evident in Satellite Imagery on the Day of
the Attack
16
7 Identifiable Features in Satellite Imagery of the DPR Checkpoint at
Olenivka
19
8 Comparison of the Buhas Checkpoint and the DPR Checkpoint at
Olenivka
20
9 Impact Craters Visible After the 13 January 2015 Attack on the
Buhas Checkpoint
22
10 Civilian Vehicles at the Buhas Checkpoint Waiting to Be Screened
on the Morning of the Attack
23
11 Overview of the Tactical Situation in the Volnovakha Region 25
12 DPR Strongpoint No. 1 Near Dokuchayevsk 28
13 Assessed BM-21 Operating Near Dokuchayevsk 29
14 Tyre Tracks Indicative of Military Activity and Georeferenced Open
Source Video of MLRS Launch Near Dokuchayevsk
30
15 DPR Strongpoint No. 2 Near Dokuchayevsk 32
16 Probable Explosive Storage Area West-Southwest of DPR
Strongpoint No. 2 Near Dokuchayevsk
33
Shelling of the Residential Area of Mariupol — 24 January 2015
17 Overview of Damage to Vostochniy Neighbourhood 36
18 Overview of Damage to Vostochniy Neighbourhood with BM-21
Ellipse Plotted at the Assessed Mean Point of Impact
37
19 Mariupol Damage Graphic No. 1 (Satellite Imagery) 39
20 Mariupol Damage Graphic No. 2 (Satellite Imagery) 40
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iii
Figure
No.
Title Page
21 Mariupol Damage Graphic No. 3 (Open Source) 41
22 Mariupol Damage Graphic No. 4 (Open Source) 42
23 Mariupol Damage Graphic No. 5 (Open Source) 43
24 Mariupol Damage Graphic No. 6 (Open Source) 44
25 Mariupol Damage Graphic No. 7 (Open Source) 45
26 Distance from the Mean Point of Impact in the Vostochniy
Neighbourhood to Ukrainian National Guard Locations
49
27 Trenches to the East of Mariupol 50
28 Checkpoint 4014 (or the “Northern Checkpoint”) 51
29 Mariupol Point of Origin Analysis Overview 54
30 Mariupol Point of Origin Analysis Area A (Pre-Incident) 56
31 Mariupol Point of Origin Analysis Area B (Pre-Incident) 57
32 Mariupol Point of Origin Analysis Area C (Pre-Incident) 58
33 Mariupol Possible Firing Position 1 60
34 Mariupol Possible Firing Position 2 61
Shelling of the Residential Area of Kramatorsk — 10 February 2015
35 Fragments from BM-30 Cluster Sub-Munitions Collected at
Kramatorsk
64
36 Tail Fin Identified in Kramatorsk Residential Area 65
37 Distance from Assessed Tail Fin Location in Kramatorsk
Residential Area to Kramatorsk Airfield
66
38 Documented Shelling Impacts at Kramatorsk 68
39 Kramatorsk Fall of Shot Graphic 1 69
40 Kramatorsk Fall of Shot Graphic 2 70
41 Kramatorsk Fall of Shot Graphic 3 71
42 Kramatorsk Point of Origin Analysis Overview 73
43 Kramatorsk Possible Firing Position 1 75
44 Kramatorsk Possible Firing Position 1 (Measurements) 76
45 Kramatorsk Possible Firing Position 2 78
46 Kramatorsk Possible Firing Position 2 (Measurements) 79
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1
I. INTRODUCTION
A. Qualifications and Experience
1. The Curricula Vitae for Ms. Catherine Gwilliam and Air Vice-Marshal
Anthony Sean Corbett are attached to this report as Annex 1 and Annex 2, respectively.
2. Ms. Gwilliam has over 18 years of experience as a certified Geospatial
Intelligence Officer with the National Geospatial-Intelligence Agency (“NGA”). This includes
holding positions across multiple U.S. government agencies and military commands, as well
as experience working in commercial organizations.
3. Air Vice-Marshal Corbett is a retired Royal Air Force Officer with over 30
years of active-duty experience as an Intelligence Officer. This includes positions as the
Head of Intelligence at the UK’s Permanent Joint Headquarters and the Chief of UK
Intelligence in Afghanistan. Air Vice-Marshal Corbett’s career includes operational
experience in Northern Ireland, Iraq, Afghanistan, Somalia, the Balkans, Libya, and Central
America.
4. Since leaving the NGA, Ms. Gwilliam co-founded Geollect, a geospatial
intelligence company that applies geospatial expertise and commercial knowledge across
public and private sectors. Air Vice-Marshal Corbett is a senior board member at Geollect,
specialising in the provision of strategic advice, commercial intelligence, and the space
sector.
B. Instructions
5. The completion of this report was instructed by Covington & Burling LLP,
acting on behalf of the Ministry of Foreign Affairs of Ukraine, to provide an expert opinion in
the case Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russia) before the International Court of Justice (“ICJ”).
6. We were instructed to provide satellite imagery expertise within the context of
military operations, including the processing of geospatial data and the production of
associated imagery intelligence products and assessments. This analysis includes
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2
assessments on shelling attacks against civilian areas in eastern Ukraine in January and
February 2015, near Volnovakha, Mariupol and Kramatorsk. Included within this, we will
assess any evidence of civilian presence or damage to civilian structures, evidence of military
or law enforcement presence, impact craters, vehicles or personnel presence, and weapon
systems used and their points of origin for launch.
7. We have been provided with the following reports:
a. The First Expert Report of Lieutenant General Christopher Brown,
dated 5 June 2018.1
b. The Second Expert Report of Lieutenant General Christopher
Brown, dated 21 April 2022.2
c. The Expert Report of Colonel Alexander Alekseevich Bobkov,
dated 8 August 2021.3
d. The Expert Report of Major General V.A. Samolenkov, dated 8
August 2021.4
C. Methodology
8. In order to conduct the analysis required to satisfy these instructions, we
approached various commercial satellite imagery vendors and searched various satellite
imagery databases to find the most relevant imagery coverage for the time period and
locations in question. This included a search of imagery from the following satellites:
WorldView-1, -2, and-3, SPOT 6/7, Pleiades 1 and 2, GeoEye-1, KazEOSat-1, KazEOSat-2,
RADARSAT, RADARSAT-2, Gaofen-2, SIIS, DMC-3 and 31AT. The metadata for the
imagery we purchased for this report is attached as Electronic Addendum 1.
1 Expert Report of Lieutenant General Christopher Brown (5 June 2018) [hereinafter Brown First
Report] (Ukraine’s Memorial, Annex 11).
2 Second Expert Report of Lieutenant General Christopher Brown (21 April 2022) [hereinafter Brown
Second Report] (Ukraine’s Reply, Annex 1).
3 Expert Report of Colonel Alexander Alekseevich Bobkov (8 August 2021) [hereinafter Bobkov
Report] (Russia’s Counter-Memorial Part I, Annex 1).
4 Expert Report of Major General Valery Alexeevich Samolenkov (8 August 2021) [hereinafter
Samolenkov Report] (Russia’s Counter-Memorial Part I, Annex 2).
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3
9. The following hardware was used for analysis:
a. DELL Inspiron with Intel® Core™ i7-8565U processor, 8GB RAM,
and Intel® UHD Graphics 620
b. Acer Nitro AN 515-54 with Intel® Core™ i7-9750H processor, 8GB
RAM, and Intel® UHD Graphics 630
10. The following software was used:
a. ArcGIS Pro 2.9.0 and 2.9.1 – Esri. This software is used for mapping,
visualizing, and analysing geographic information, including satellite
imagery. Analysis includes calculating image statistics, rendering
images, measuring distances and areas, counting features, and
creating distance buffers. This software was also used to create all of
the Figures included in this report. Of particular note, ArcGIS Pro
automatically writes coordinates in the format of longitude, latitude;
so the format we use throughout this report is Degrees, Minutes,
Seconds with longitude listed first, and latitude listed second.
b. Google Earth Pro 7.3.4.8248 (64-bit) Build date: 16 July 2021 9:27:35
PM UTC
c. GNU Image Manipulation Program – 2.10.14 (GIMP)
d. Sentinel Application Platform – 7.0 (SNAP)
11. The steps for analysis include the pre-processing of the imagery in order to
orthorectify and pan-sharpen the images to the highest level of accuracy and spatial
resolution possible. Orthorectification is a type of georeferencing, or the process of
converting satellite images to a format suitable to layer on top of maps. Pan-sharpening the
images is the process of using spatial information from the high-resolution greyscale bands
in an image to create higher resolution colour images. When the software ArcGIS Pro
ingested images, statistics were calculated and reprocessed to increase visibility of smaller
features in the images. Once images are processed and layered into ArcGIS Pro, analysis of
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4
features of the images begins. Features are drawn onto the image in order to take
measurements.
12. The software used enables us to zoom in on an image to measure, assess, and
identify various features. The spatial resolution of the images analysed ranged from 40- to
50-cm. As an example, a 40-cm spatial resolution image means that each pixel within the
image is equivalent to a 40-centimetre distance on the ground. As you zoom into a large
scale on the image map, more features become identifiable. The image below provides an
example of a small-scale map (zoomed out) on the left and a large-scale map (zoomed in) on
the right. Each map contains the same exact image, but at different zoom levels. As
evidenced in the example, more features can be distinguished and identified on the largescale
map such as individual trees, building structures, electricity transmission towers, and
vehicles. Each of these features and their shadows can be measured to true distance on the
ground based on the processing of the image as described above (georeferencing). The
feature identification procedures include using shapes, colour, shadows, measurements, and
orientation to identify features such as buildings, vehicles, vegetation, burn marks, vehicle
revetments, damaged areas, tire marks, road networks, etc. As trained imagery analysts,
identification of these features on satellite imagery is also based on experience identifying
and corroborating similar features using other image sources such as ground photos. Here is
an example image:
- 88 -
5
Example Image
13. The spatial resolution and angle of collection of images can present analytical
limitations. As stated above, spatial resolution of the images we used throughout the
analysis ranged from 40-cm to 50-cm. The angle in which the image is collected can
sometimes obscure features, particularly when coupled with shadows cast due to the time of
the day the image is collected.
14. Knowledge and experience mitigate the risk of misidentification of features.
As trained imagery analysts, the angle of the collection of the image and the shadows cast
from the position of the sun in the sky help to build the understanding of the characteristics
of certain features. Knowledge and experience also mitigate the limitations of the satellite
imagery. As trained open-source intelligence analysts, we can also corroborate what we see
in satellite imagery with ground photos.
II. SHELLING OF THE CHECKPOINT NEAR VOLNOVAKHA — 13 JANUARY 2015
15. We sourced the highest resolution of imagery available in order to make
effective assessments and conduct credible analysis of the shelling near Volnovakha. The
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6
resolution we used was 0.5 metres within the high-resolution category, which is an
appropriate resolution to conduct in-depth analysis. The dates of images we used were the
closest available pre- and post-incident, between 13 January 2015 and 21 February 2015 for
the geographical area of interest.
16. 63 images were sourced as available and relevant for the shelling near
Volnovakha, taking into account the Buhas checkpoint location and potential points of
origin. Many of these images were discounted because of cloud cover and environmental
elements obscuring the image clarity. In total, 13 images were purchased and used for
analysis, covering the dates 31 December 2014 to 23 February 2014. One additional image
was purchased to analyse the DPR checkpoint at Olenivka, dated 29 April 2016.
A. Impact Location
1. Characteristics of the Buhas Checkpoint
17. We conducted an initial analysis of the impact location to understand the
physical characteristics of the Buhas checkpoint. We achieved this by corroborating opensource
reporting and accessible information with satellite imagery of 13 January 2015, 12
February 2015, and 21 February 2015. The analysis confirmed the location of the checkpoint
at coordinates 47°36’48”N 37°31’46”E (latitude, longitude). This location is consistent with
that highlighted by Colonel Bobkov in Figure 1 of his expert report.5 Our analysis of the
Buhas checkpoint features is contained in Figure 1 (below).
18. The baseline assessment identifies a number of features associated with the
checkpoint on the day of attack, with a satellite image of the same date (13 January 2015),
taken a number of hours before the attack.6 The distinguishable features of the checkpoint
are outlined below:
• 7 box trucks
• 2 patrol vehicles
5 See Bobkov Report, Figure 1 (Russia’s Counter-Memorial Part I, Annex 1).
6 WorldView-2 13 January 2015 09:08 UTC, the same image of the Buhas checkpoint analysed by
Colonel Bobkov in his report. See, e.g., Bobkov Report, Figure 7 (Russia’s Counter-Memorial Part I,
Annex 1).
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7
• 2 tents
• 4 pits (unoccupied and fenced off)
• Trenchwork
• Concrete barriers
• Defensive breastwork
• 1 observation post
• Fence perimeter with ingress/egress points
- 91 -
8
Figure 1. Features of the Buhas Checkpoint Identified on Satellite Imagery.
- 92 -
9
19. Imagery analysis of the Buhas checkpoint indicates that, on 13 January 2015,
the construction and layout was consistent with that of a law enforcement configuration
designed for screening vehicles — it was not a fortified military installation. Two pits were
highlighted to the western side of the checkpoint, but these were unoccupied in all imagery
assessed in January and February 2015 and were located outside the fence line.
20. The trench systems identified are rudimentary in nature and do not offer
adequate protection for arcs of fire and defensive posturing, as would be expected at a
fortified military checkpoint. The trenches to the northwest of the checkpoint are outside the
fences, with one point of entry two metres away from the trench by means of a break in the
fence line. In addition, as Colonel Bobkov states in his report at paragraph 52, the Ukrainian
Armed Forces (“UAF”) defensive positions closer to the contact line were orientated towards
the east, north-east and north towards the DPR frontline.7 Some of the rudimentary
trenches at the Buhas checkpoint faced northwest, away from known DPR positions.
21. We found the car park area to the southwest of the checkpoint only contained
civilian vehicles, with no clear markings, including six trucks and one passenger truck. We
found no evidence to suggest that these vehicles were of the type used for troop movements.
In all of the imagery we examined, the positioning of these vehicles remains the same, with
snow cover apparent in front of the vehicles in the CCTV footage of the attack,8 suggesting
that the usage of these vehicles might be uncommon.
22. The tree lines to the northeast and southwest of the checkpoint appear to be
pre-existing treelines that delineate between fields. These treelines do not appear to have
been altered in any way for defensive posturing, or removed to enable line of sight for firing
positions. We therefore conclude that these are natural features and cannot be described as
protective in nature.
7 See Bobkov Report, para. 52 (Russia’s Counter-Memorial Part I, Annex 1).
8 See Military.com, Huge MLRS Attack on Ukrainian Checkpoint (16 January 2015).
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10
23. Figure 2 (below) highlights features at the checkpoint that are consistent with
2015 UN peacekeeping guidance on the setup of police checkpoints.9 The deceleration zones,
search zones, and concrete barrier funnelling for traffic calming — all features outlined in the
UN guidance — are immediately apparent at the Buhas checkpoint.
9 See U.N. Police, Peacekeeping PDT Standards for Formed Police Units (2015) (Ukraine’s Reply,
Annex 57).
- 94 -
11
Figure 2. Law Enforcement Vehicle Screening Features of the Buhas Checkpoint.
- 95 -
12
24. CCTV footage of the Buhas checkpoint on 13 January 2015, the day of attack,
shows a 360 degrees sweep of the area,10 which we analysed and corroborated with other
open-source information and satellite imagery to understand the characteristics of the
checkpoint. Two vehicles are evident in the footage and annotated in Figure 3 (below). The
vehicles are assessed to be patrol vehicles, operated by and associated with the group Kyiv-2.
The consistent features highlighted on the vehicles included a distinctive white striped
marking down the centre of the vehicle, the large grill on the front of the vehicle, and two red
and blue police sirens evident on either side at the front of the vehicle. An open-source
search found a news report on the Kyiv-2 group that corroborated these vehicles at Figure 4
(below). The still images further highlight the features of the vehicle, including red and blue
sirens. These vehicles are more commonly associated with law enforcement and do not
appear to be military-grade equipment. No vehicles of a military nature were evident in
satellite imagery on the day of attack.
Figure 3. Images of Law Enforcement Presence at the Buhas Checkpoint.11
10 See Military.com, Huge MLRS Attack on Ukrainian Checkpoint (16 January 2015).
11 See Footage from a Surveillance Camera at the Checkpoint (10 January 2015) (video) (Ukraine’s
Memorial, Annex 695).
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13
Figure 4. Open Source Images Corroborating Law Enforcement Patrol Vehicles at the
Buhas Checkpoint.12
25. Satellite imagery analysis as shown in Figure 5 (below) corroborated the
location of the two patrol vehicles evident in the CCTV footage on 13 January 2015, based on
the location and measurements of the vehicles. Colonel Bobkov does not identify these law
enforcement patrol vehicles in Figure 7 of his report, which analyses the same satellite
imagery of the Buhas checkpoint.13
12 YouTube,      -2» (18 March 2015),
https://www.youtube.com/watch?v=g5pDj8Fapko.
13 See Bobkov Report, Figure 7 (Russia’s Counter-Memorial Part I, Annex I).
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14
Figure 5. Law Enforcement Vehicles Observed in Satellite Imagery of the Buhas
Checkpoint and Corroborated with CCTV and Open-Source Video (Figures 3 and 4,
above).14
14 Measurements are derived from satellite imagery and thus are subject to a small margin of error due
to the resolution of the imagery.
- 98 -
15
26. Open source images identified by Colonel Bobkov in Figure 10 and Figure 11
of his report (Bobkov Photo No. 1 and Bobkov Photo No. 2)15 were processed through a
reverse image search using RevEye, which located the images on Yandex (a Russianlanguage
search engine). Bobkov Photo No. 1 (dated 2 October 2014) and Bobkov Photo No.
2 (dated 20 January 2015) show the equipment outlined by Colonel Bobkov in his report (a
BRDM-2 armoured reconnaissance vehicle and a MT-12 anti-tank gun, among other
equipment) as present at the Buhas checkpoint on those respective dates. However, based
on our analysis of available satellite imagery (see Figure 6, below), this equipment was not
evident at the Buhas checkpoint on 13 January 2015, the day of attack. Bobkov Photo No. 1
was taken significantly before the attack (2 October 2014) and Bobkov Photo No. 2 was taken
one week after the attack (20 January 2015).
15 See Bobkov Report, Figures 10-11 (Russia’s Counter-Memorial Part I, Annex I).
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16
Figure 6. Equipment Observed in Open-Source Imagery of the Buhas Checkpoint that Is
Not Evident in Satellite Imagery on the Day of the Attack.
- 100 -
17
2. Comparison with the DPR Checkpoint Near Olenivka
27. The DPR checkpoint near Olenivka (centred at position 47°49’3”N,
37°38’46”E, and depicted in Figure 7, below) was assessed in order to compare the features
of this location with the Buhas checkpoint; a comparative analysis was conducted at Figure 8
(below). This DPR checkpoint near Olenivka was allegedly targeted by the UAF on 27 April
2016, at approximately 02:45 A.M. local time according to reporting by the OSCE Special
Monitoring Mission to Ukraine.16 The satellite image used to assess the DPR checkpoint
near Olenivka was taken on 29 April 2016, two days after the alleged attack.
28. Figure 8 shows a comparison of the two checkpoints side by side. What is
immediately apparent is the more elaborate and sophisticated nature of the Olenivka
checkpoint trench system. Totalling approximately 3,055 metres, the checkpoint near
Olenivka has around 2,955 metres more in total length of trenches than the Buhas
checkpoint, which has approximately 100 metres.17 The trench system at the Olenivka
checkpoint provides coverage on all sides of the perimeter and encircles the main defensive
position, which is more consistent with military doctrine for a defensive installation. In
contrast to the Buhas checkpoint, the Olenivka checkpoint has a clear ingress and egress into
the trench systems. These appear to be reinforced by protective materials, possibly sandbags
on either side of the trench. The trench system allows full view and coverage of the area.
29. At the Olenivka checkpoint, an area approximately 30 x 70 metres has been
dug out and surrounded by the trench system with heavy tyre tracks leading into this area.
We assess this as a likely strong point for personnel and equipment at the checkpoint. A
similar feature is not identifiable at the Buhas checkpoint.
30. At the Olenivka checkpoint, a total of 15 positions were identified as vehicle
revetments for armoured vehicles. Vehicle revetments are dug out areas that provide greater
protection from fragmentation and high walls for protection that vehicles can be stored in,
16 See OSCE, Spot Report by the OSCE Special Monitoring Mission to Ukraine (SMM): Shelling in
Olenivka (28 April 2016).
17 Measurements are derived from satellite imagery and thus are subject to a small margin of error due
to the resolution of the imagery.
- 101 -
18
and are a feature consistent with a defensive military position. Not all of these vehicle
revetments were occupied in the image assessed and sourced at Figure 8, but one position is
highlighted and shown in Figure 7 to contain a likely infantry fighting vehicle. The
revetments are co-located within the trench system and face either the direction of
opposition forces or the main highway. This provides the armoured vehicles with multiple
protected locations and allows for established routes for ease of access. This is in contrast to
the pits highlighted at the Buhas checkpoint, which face away from the highway and have no
clear access points. The number and positions of the revetments at the Olenivka checkpoint
suggest a continued military presence, and clear and distinguishable vehicle tracks
throughout the area indicate continued and regular usage. Figure 7 also highlights a number
of grey/green coloured vehicles operating at the checkpoint matching the dimensions and
characteristics of military vehicles, likely to be infantry fighting vehicles or armoured
personnel carriers.
- 102 -
19
Figure 7. Identifiable Features in Satellite Imagery of the DPR Checkpoint at Olenivka.18
18 Measurements are derived from satellite imagery and thus are subject to a small margin of error due
to the resolution of the imagery.
- 103 -
20
Figure 8. Comparison of the Buhas Checkpoint and the DPR Checkpoint at Olenivka.
- 104 -
21
3. Impact Analysis
31. We analysed the extent of impacts in the vicinity of the Buhas checkpoint. In
pre-incident imagery of 13 January 2015 09:08 UTC, as shown in Figure 9 (below), no
impact craters are visible. We conducted post-incident imagery analysis on imagery dated 21
February 2015 07:59 UTC. This image was used due to heavy snow cover obscuring the
ground in imagery on 12 February 2015. This imagery was otherwise the first available highresolution
image available after the attack date. The greater image clarity on 21 February
helped us complete the impact analysis.
32. In order to verify that these craters were the result of the 13 January attack on
the Buhas checkpoint, the location of the impacts visible in the CCTV footage of the attack19
were cross-referenced with the location of the impact craters on satellite imagery.
33. Figure 10 (below) shows evidence of a long line of civilian vehicles in the
vicinity of the Buhas checkpoint on the morning of the attack, 13 January 2015 at 09:08
UTC. We found that 87 vehicles were present waiting to be screened, 63 from the direction
of Buhas and 24 from the direction of Volnovakha. This is consistent with Colonel Bobkov’s
analysis in paragraph 36 of his report.20
19 See Military.com, Huge MLRS Attack on Ukrainian Checkpoint (16 January 2015).
20 See Bobkov Report, para. 36(2) (Russia’s Counter-Memorial Part 1, Annex 1).
- 105 -
22
Figure 9. Impact Craters Visible After the 13 January 2015 Attack on the Buhas Checkpoint.21
21 Measurements are derived from satellite imagery and thus are subject to a small margin of error due to the resolution of the imagery.
- 106 -
23
Figure 10. Civilian Vehicles at the Buhas Checkpoint Waiting to be Screened on the
Morning of the Attack.
- 107 -
24
B. Potential Point of Origin
34. We also conducted imagery analysis to ascertain a potential point of origin for
the attack on the Buhas checkpoint. General Brown’s analysis identifies that the attack came
from a north to north-eastern direction.22 He also assessed that the firing range was between
19.4 and 19.8 km, which places the point of origin in the vicinity of the town of
Dokuchayevsk.23 Additionally, a number of open source entities suggest that the launch
range was within 15 to 20 km from the Buhas checkpoint,24 which we also factored into our
imagery analysis. These ranges are all within DPR-controlled territory, so our analysis
aimed to understand DPR strongpoints and activity in this area around the time of event.
While there is no single image at the time of the attack identifying the point of origin, the
imagery evidence appears consistent with General Brown’s conclusions, in light of significant
military activity in the area of Dokuchayevsk; and in particular evidence of BM-21 presence
in the area of Dokuchayevsk.
35. An overview graphic is displayed at Figure 11 (below) to visualise and simplify
the key details and areas assessed. Limitations with available imagery meant that the only
imagery of a resolution high enough to assess this region was on 13 February 2015, 21
February 2015, and 23 February 2015 (i.e., after the attack on the checkpoint).
22 See Brown First Report, para. 25 (Ukraine’s Memorial, Annex 11).
23 See ibid., para. 26.
24 See, e.g., Putin@War, Possible Launch Location Determined for Volnovakha Attack,
http://ukraineatwar.blogspot.com/2015/01/possible-launch-location-determined-for.html (17
January 2015); Putin@War, Dokuchajevsk GRAD Video Was Filmed at SAME TIME as Volnovakha
Attack, http://ukraineatwar.blogspot.com/2015/01/dokuchajevsk-grad-video-was-filmed-at.html (21
January 2015).
- 108 -
25
Figure 11. Overview of the Tactical Situation in the Volnovakha Region.
- 109 -
26
36. DPR Strongpoint No. 1 (see Figure 12, below) was highlighted to the
northwest of Dokuchayevsk near Yasne in vicinity of position 47°46’26”N, 37°37’59”E.
Colonel Bobkov highlighted this strongpoint in his report at Figure 23, positions 5, 6, and
7.25 This location is on the borderline of the 19.4 to 19.8 km firing range that General Brown
assessed in his first report.26
37. Identifiable features at the strongpoint include vehicle revetments, trench
systems, concrete barriers, and impact craters in the vicinity. This position is approximately
3.6 km northwest of the town of Dokuchayevsk.
38. To the east of the area, in a field on the eastern side of the T0509 road in
vicinity of position 47°46’20”N, 37°39’01”E is a large scorched area, within General Brown’s
assessed 19.4 to 19.8 km range from the Buhas checkpoint. The firing of a Multiple Launch
Rocket System (“MLRS”) leaves visible burn (or “scorch”) marks on the ground which point
in the direction of the target of the attack. Any rocket that is launched will leave an exhaust
trail where the propellant ignites in line with the direction that the missile is firing. While
the cause of this particular scorched area cannot be determined based on the imagery alone,
and it is possible that this is unrelated to DPR MLRS activity, circumstantially the proximity
to DPR Strongpoint No. 1 and the geographical positioning within the 19.4 to 19.8 km range
from the Buhas checkpoint is of interest.
39. A probable BM-21 was identified on imagery dated 23 February 2015,
travelling east into the town of Dokuchayevsk (see Figure 13, below). The approximate
dimensions and the shadow characteristics of a long bonnet and raised cab, with an
additional raised area to the rear, are consistent with identifiable features of a BM-21 MLRS
system. This aligns with General Brown’s assessment that BM-21 systems were operating in
Dokuchayevsk around the period of the attack.27
25 See Bobkov Report, Figure 23 (Russia’s Counter-Memorial Part I, Annex 1).
26 See Brown First Report, para. 26 (Ukraine’s Memorial, Annex 11).
27 See Brown First Report, para. 26 (5 June 2018) (Ukraine’s Memorial, Annex 11).
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27
40. A video capture (see Figure 14, below), claimed to be taken on the day of the
Buhas checkpoint attack, was geo-located to be in a residential area approximately 0.5 km to
the southwest of the assessed BM-21 driving near Dokuchayevsk. In the video, audible
weapon system fire is apparent, suggesting a launch from a nearby location. The lack of
suitable imagery precluded the identification of a firing position at the time of attack or in
the hours afterwards; however, tyre tracks of interest were highlighted in a field to the north
of the position which indicate a likely firing position within audible range of the video
capture. This would align with the range analysis conducted by General Brown.
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28
Figure 12. DPR Strongpoint No. 1 Near Dokuchayevsk.
- 112 -
29
Figure 13. Assessed BM-21 Operating Near Dokuchayevsk.28
28 Reference image captured by OSCE unmanned aerial vehicle system. See Militarnyi, OSCE
Demonstrated Russian Grad-K MLRS in Donbas (23 November 2021).
- 113 -
30
Figure 14. Tyre Tracks Indicative of Military Activity and Georeferenced Open Source
Video of MLRS Launch Near Dokuchayevsk.29
29 YouTube, Volnovakha Attack on Bus 13-1 Compilage of Three Videos (17 January 2015),
https://www.youtube.com/watch?v=x_G_dCApelw (imagery from this video has been analysed and
geo-located on the above satellite imagery).
- 114 -
31
41. DPR Strongpoint No. 2 (see Figure 15, below) was identified approximately
1.5 km to the south of Stara Koloniya in vicinity of position 47°42’51”N, 37°40’49”E. Colonel
Bobkov highlighted this strongpoint in his report at Figure 23, position 10.30 This
strongpoint is within the 15 to 20 km range of interest highlighted from the Buhas
checkpoint and is a possible firing area.
42. Identifiable features at the strongpoint include occupied and unoccupied
vehicle revetments. The occupied revetments are assessed to contain infantry fighting
vehicles. There are also trench systems, concrete barriers, defensive breastwork, and
significantly visible vehicle tracks. Some of these vehicle tracks show utilisation of two
warehouses that would be capable of housing larger equipment, such as MLRS systems, in
positions 47°42’49”N, 37°40’43”E and 47°42’47”N 37°40’44”E.
43. Approximately 2.3 km west-southwest of this strongpoint is a probable
disused explosives storage area at position 47°42’25.00”N, 37°39’3.88”E (see Figure 16,
below). This area was not highlighted in Colonel Bobkov’s report, although he does highlight
the trenches, dug out positions, fighting vehicles, artillery systems and fighting holes in the
vicinity at Figure 23 of his report, positions 11 and 12.31 Our assessment that this is a
probable explosives storage area is based on the fenced perimeter around the outside of the
area restricting access and bunding around key buildings. Bunding is used as a constructed
retaining wall around storage of potentially hazardous materials to contain any escape of the
material within. The site appears to have been an industrial explosives storage area for the
Dokuchayevsk flux-dolomite plant, but the fortification around the immediate area indicates
that it was possibly under DPR control during this time period. Given the close proximity of
this location to the DPR front-line, we assess that it was unlikely the DPR was using this
location as an explosive storage facility at the time of the attack on the Buhas checkpoint.
30 See Bobkov Report, Figure 23 (Russia’s Counter-Memorial Part I, Annex 1).
31 See ibid.
- 115 -
32
Figure 15. DPR Strongpoint No. 2 Near Dokuchayevsk.32
32 Measurements are derived from satellite imagery and thus are subject to a margin of error due to
the resolution of the imagery.
- 116 -
33
Figure 16. Probable Explosive Storage Area West-Southwest of DPR Strongpoint No. 2
Near Dokuchayevsk.
- 117 -
34
C. Conclusions
44. Our analysis of the Buhas checkpoint indicates that at the time of the attack it
was non-military in nature. As demonstrated above (see Figure 2), the construction and
layout was consistent with a law enforcement configuration designed for screening vehicles
— it was not a fortified military installation. There were no apparent military targets within
the immediate vicinity of the checkpoint, and all of the associated infrastructure at the
checkpoint was consistent with normal security measures at a vehicle screening installation.
Furthermore, given the checkpoint’s location on an operating highway, the likelihood that
civilian vehicles would be present waiting to be screened at the time of the attack was high
(see Figure 10, above).
45. Finally, as demonstrated above, the Buhas checkpoint was located behind
UAF military positions in the region, and approximately 13.6 km from DPR-controlled
territory (see Figure 11, above). There is no indication in the satellite imagery taken on the
morning of the attack that the DPR was preparing for a ground offensive on the Buhas
checkpoint.
III. SHELLING OF THE RESIDENTIAL AREA OF MARIUPOL — 24 JANUARY 2015
46. This imagery analysis uses available commercial satellite imagery of 0.5 metre
or better as close as possible to the reported events (before and after) to assess damage to the
Vostochniy residential neighbourhood and to analyse the situation in the vicinity of Mariupol
leading up to and following the shelling attack on 24 January 2015.
47. 101 images were sourced as available and relevant for the shelling in the
Vostochniy neighbourhood, taking into account the Vostochniy neighbourhood location and
potential points of origin. Many of these images were discounted because of cloud cover and
environmental elements obscuring the image clarity. In total, 13 images were purchased
covering the dates 13 January 2015 to 21 February 2015.
48. Pleiades imagery of 13 February 2015 was used to assess damage within
Mariupol. Pleiades imagery of 18 January 2015, World View 1 Imagery of 13 January 2015
and World View 2 imagery of 13 February 2015, augmented by imagery available through
- 118 -
35
Google Earth, has been used to identify and characterise Ukrainian defensive positions to the
east of Mariupol. This imagery was also used to assess likely DPR firing positions.
A. Impact Location
1. Damage to the Vostochniy Residential Neighbourhood
49. We have been asked to assess the extent of damage to the Vostochniy
residential neighbourhood as a result of the attack on Mariupol on 24 January 2015.
50. The closest available imagery of sufficient resolution post-incident was
Pleiades imagery of 13 February 2015. This imagery was used to identify impact points and
to geo reference open source footage of damage. The imagery was analysed against preincident
World View 2 imagery of 13 January 2015 to corroborate the resulting damage.
51. In addition to the damage immediately identifiable in satellite imagery, open
source content contains post-incident photos and videos of damaged areas that could not be
directly identified in satellite imagery due to the small size of individual impact points,
azimuth of the satellite, and long shadows cast by objects. These areas were georeferenced to
understand where they were located within the Vostochniy neighbourhood.
52. Figure 17 (below) shows a satellite image overview of the assessed damage
within the Vostochniy neighbourhood. The neighbourhood is primarily residential, with
associated commercial and civilian infrastructure in a densely populated area.
53. Figure 18 (below) shows the same satellite image overview of assessed
damage with a BM-21 ellipse plotted, based on General Brown’s calculations. According to
General Brown, the ellipse corresponds to the area in which 100% of rockets from a single
launcher should land, based on 122mm rockets being fired at a 17.4 km range33 and a mean
point approximately 200 metres northwest of Kyivski Market.34
33 See Brown First Report, para. 51 (Ukraine’s Memorial, Annex 11).
34 General Brown’s assessed mean point of impact for the attack on the Vostochniy neighbourhood.
See Brown Second Report, para. 30(a)(i) (Ukraine’s Reply, Annex 1).
- 119 -
36
- 120 -
37
35
35 See Brown Second Report, para. 30(a)(i) (assessing the mean point of impact approximately 200
metres northwest of the Kyivski market) (Ukraine’s Reply, Annex 1).
- 121 -
38
54. Figures 19 and 20 (below) show evidence of damage to civilian infrastructure
and residential areas visible on satellite imagery.
55. Figure 19 shows residential houses with roofs intact pre-incident. In postincident
imagery, the same houses have collapsed roofs.
56. Figure 20 shows fire damage and structural damage to civilian and
commercial infrastructure in the vicinity of Kyivski Market. This image is further
corroborated with georeferenced open source video footage, images, and drone footage at
Figures 21 and 22 (below).
57. Figures 23 - 25 (below) show additional damage highlighted in open source
video footage that was georeferenced in satellite imagery, including an impact crater visible
in a school courtyard in Figure 25.
- 122 -
39
Figure 19. Mariupol Damage Graphic No. 1 (Satellite Imagery).
- 123 -
40
Figure 20. Mariupol Damage Graphic No. 2 (Satellite Imagery).
- 124 -
41
Figure 21. Mariupol Damage Graphic No. 3 (Open Source).36
36 YouTube, Mariupol Ukraine 24.01.2015 (24 January 2015),
https://www.youtube.com/watch?v=zI4ItiL0UVY (imagery from this video has been analysed and
geo-located on the above satellite imagery).
- 125 -
42
Figure 22. Mariupol Damage Graphic No. 4 (Open Source).37
37 YouTube, Evidence of Russian Militaries Involvement in Shooting in Mariupol (7 May 2018),
https://www.youtube.com/watch?v=K5qS9m5_QTE (imagery from this video has been analysed and
geo-located on the above satellite imagery).
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43
Figure 23. Mariupol Damage Graphic No. 5 (Open Source).38
38 YouTube,        (24 January 2015),
https://www.youtube.com/watch?v=FXB9yoZTpqg (imagery from this video has been analysed and
geo-located on the above satellite imagery).
- 127 -
44
Figure 24. Mariupol Damage Graphic No. 6 (Open Source).39
39 YouTube,    (24 January 2015),
https://www.youtube.com/watch?v=_WVfmMZPSng (imagery from this video has been analysed and
geo-located on the above satellite imagery).
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45
Figure 25. Mariupol Damage Graphic No. 7 (Open Source).40
40 YouTube,         (10 February 2015),
https://www.youtube.com/watch?v=0PgB6yiQjIQ (imagery from this video has been analysed and
geo-located on the above satellite imagery).
- 129 -
46
2. Analysis of Ukrainian National Guard Locations Near Mariupol
58. We were asked to conduct an assessment on the nearest Ukrainian National
Guard positions to the Vostochniy residential area. It should be noted that limitations with
available imagery and cloud cover obscuring imagery meant that a full assessment of
presence or activity could not be made within nine days of the attack. However, the general
disposition of all positions over a period of several weeks before and after the attack are
defensive and there is no evidence on imagery of any build-up of Ukrainian forces that could
be constituted as an increase in defensive posture leading up to the date of the attack.
59. As demonstrated in Figure 26 (below), General Brown’s assessed mean point
of impact in the Vostochniy neighbourhood was between 1.1 and 2.5 km away from all
Ukrainian National Guard locations on the outskirts of the city.
60. As demonstrated in Figure 27 (below), the line of trenches to the east of the
city were for the most part anti-tank ditches designed to prevent tanks from advancing on
the city. The trenches appear unmanned in available satellite imagery.
61. In paragraph 169 of his report, General Samolenkov refers to Bobkov
Positions 20 to 25 as a “line of reinforcements.”41 Based on available satellite imagery, there
is nothing that suggests there was a line of forces running between these positions. Bobkov
Position 20 is Checkpoint 4014 (or the “northern checkpoint”) (see Figure 28, below).
Bobkov Positions 21 to 24 are trenches and fortified pieces of land that appear unoccupied in
available satellite imagery. Bobkov Position 25 is a dug-out position for armoured vehicles,
which appears empty in available satellite imagery. Furthermore, there are no vehicle tracks
evident on satellite imagery that would suggest continued usage of Bobkov Positions 21 to 25
by Ukrainian National Guard forces in the area. Cloud cover and available imagery
limitations preclude any further evaluation.
41 Samolenkov Report, para. 169 (Russia’s Counter-Memorial Part I, Annex 2).
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47
62. Overall, all Ukrainian positions appear to be defensive in nature and there is
no evidence on imagery of any build-up of Ukrainian forces before the date of the attack that
could be constituted as a strengthening of Ukraine’s defensive posture.
Ukrainian National Guard Locations in the Vicinity of Mariupol
Reference Bobkov
Reference
Description Location Comments
1 Table 5. #20 Defensive Position at
the NE edge of
Mariupol, comprising 2
trench complexes
(North and Souh of the
E58/M14 highway), 8 x
vehicle revetments and
a possible checkpoint
building.
47°07’52.17
“N,
37°41’15.15
"E
Imagery resolution precludes
the identification of personnel
or military activity although
Imagery of 23/11/2014
indicates probable vehicles in
2 of the revetments.
Construction of the complex
was begun sometime between
30/05/2014 and 27/07/2014
and completed by 11/10/2014.
2 Table 5. #19,21 Earth Berms either side
of E58/M14, directly
East of Ref 1.
Centre at
47°07’51.91
“N,
37°41’30.33
"E
The position of these berms
makes it likely they are
designed as protection for Ref
1.
3 Table 5. #22,23 These are a series of
personnel trenches
oriented NW to SE
outside of the city
boundaries on the
eastern side of the
Marshala Zhukova
Street.
Centre of
trench-line
at
47°07’52.17
“N,
37°41’15.15
"E
These trenches are oriented to
protect the eastern approaches
to Mariupol and were
constructed between
05/09/2014 and 19/09/2014.
Imagery cannot determine
whether these trenches are
occupied and no related
activity is observable.
4 Table 5. #26 Defensive Position to
the SE of Mariupol,
comprising a series of
trenches, fighting
positions and berms,
including a bermed
vehicle parking area.
47°06’42.41
“N,
37°42’02.0
3 "E
Imagery of 23/02/2015 shows
evidence of shelling
immediately to the N, E and
SE of this defensive position,
although there is no evidence
of impact points on the
position itself.
5 Table 5. #17,18 Defensive Position
centred 2km to the NE
of Mariupol,
comprising substantial
trench complexes either
side of the E58, at least
18 vehicle revetments
to the south of the road
and 20 vehicle
revetments to the north
of the road. The
trench-line extends NE
for over 2.5 km and
numerous unconnected
Checkpoint
at
47°08’25.95
“N,
37°42’31.63
"E
Construction of this position
commenced between
30/05/2014 and 05/09/2014,
completed by 11/10/2014.
Imagery of 11/10/2014 shows
evidence of shelling of the
position.
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48
fighting positions. The
centre of the complex is
on the E58 and
includes a vehicle
checkpoint.
6 Table 5. #29,30 Defensive Position,
Vynohradne.
Comprising defensive
positions, vehicle
revetments, trenches,
extending North-South
for approximately
800m.
47°05’46.35
“N,
37°42’30.8
6 "E
Defensive Position has been in
place since at least
05/09/2014, although
trenches were constructed
sometime between this date
and 19/09/2014.
7 Table 5.
#16,18,24,27,2
8
Series of Earth Berms
and trenches, extending
North-South to
Lomakyne.
This defensive line may
represent the Ukrainian
Forward Line of Troops
(“FLOT”) at the time of the
incidents.
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49
Figure 26. Distance from the Mean Point of Impact in the Vostochniy Neighbourhood to
Ukrainian National Guard Locations.42
42 Measurements are derived from satellite imagery and thus are subject to a small margin of error
due to the resolution of the imagery.
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50
Figure 27. Trenches to the East of Mariupol.43
43 Measurements are derived from satellite imagery and thus are subject to a small margin of error due
to the resolution of the imagery.
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51
Figure 28. Checkpoint 4014 (or the “Northern Checkpoint”).44
44 Bobkov Position 20. See Bobkov Report, Figure 26 (Russia’s Counter-Memorial Part I, Annex 1).
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52
B. Potential Point of Origin
63. We were also asked to conduct imagery analysis in order to ascertain a
potential point of origin for the attack on Mariupol. We were asked to investigate three areas
of interest. The first two areas of interests were based on OSCE reporting of firing positions
during this period at Verkhnoshyrokivske (formerly “Oktyabr”) in the vicinity of
47°14’4.08”N 37°51’41.80”E (“Point of Origin Analysis Area A”), and Zaichenko in the
vicinity of 47°11’0.89”N 37°51’39.41”E (“Point of Origin Analysis Area B”).45 In addition to
these two areas of interest based on OSCE reporting, we were also provided with a third area
of interest north of Bezimenne (47°6’33.28”N 37°56’4.58”E) and east/northeast of Sakhanka
(47°7’43.11”N 37°51’35.53”E) and Leninske (47°8’30.85”N 37°51’6.91”E) (“Point of Origin
Analysis Area C”). This allowed us to analyse three areas of interest with satellite imagery.
64. General Brown also assesses in his report that the firing direction was from
the east or north-east to a distance of around 15 to 19 km.46 We corroborated this
assessment based on Figure 24 (above), which depicts an impact crater in the side of a
residential building facing east.
65. All of the above allowed for a more refined search area to assess any
associated military activity or likely DPR firing positions. Figure 29 (below) is a consolidated
overview of this information plotted for context and reference. Limitations of available
imagery precluded an analysis immediately before or after the attack. Pleiades imagery of 18
January 2015 was used for pre-incident patterns of life and World View 2 imagery of 13
February 2015 was used for analysis after the event. These were the closest images available
to the attack.
66. We identified probable historical DPR MLRS firing positions on the pre- and
post-strike imagery of 18 January 2015 and 13 February 2015 (Figures 31 to 34, below). The
dates of this imagery preclude the establishment of a direct link between the identified likely
45 See OSCE, Spot Report by the OSCE Special Monitoring Mission to Ukraine (SMM), 24 January
2015: Shelling Incident on Olimpiiska Street in Mariupol (24 January 2015) (Ukraine’s Memorial,
Annex 328).
46 See Brown First Report, para. 47 (Ukraine’s Memorial, Annex 11).
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53
launch points and the attack on Mariupol; however, they demonstrate that these areas were
used over this period of time by the DPR for launches towards Ukraine governmentcontrolled
territory. The “shoot and scoot” tactics likely to be employed by MLRS operators
(in which the launchers spend a minimum amount of time at a launch site to prevent
counter-targeting), makes it unlikely that launch vehicles would be evident on imagery on
the day of attacks unless the satellite pass coincided with the launch period. Following a
launch, these vehicles are highly likely to rapidly depart the launch location and withdraw
out of range of counter-fire, or at least head under cover where they cannot be located.
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54
Figure 29. Mariupol Point of Origin Analysis Overview
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55
1. Pre-Incident Point of Origin Analysis
67. Pre-incident imagery for Point of Origin Analysis Area A evidenced three
vehicles assessed to be possible D-30 (“Howitzer”) artillery (see Figure 30, below). The size
and shape of the vehicles is more consistent with a Howitzer shape than what would be
expected from box bodied vehicle features associated with MLRS weapon systems. This
suggests that a D-30 Howitzer artillery weapon system was operating within DPR-controlled
territory at least one week prior to the attack on the Vostochniy neighbourhood.
68. Scorch marks consistent with what would be expected from a BM-21 weapon
system were found in Point of Origin Analysis Areas B and C (see Figures 31 and 32, below),
however, this imagery was captured pre-incident so the scorch marks cannot be attributed to
the attack on Mariupol. That said, our assessment based on the pattern of images over time
is that this area was commonly used for MLRS launches and the direction of scarring
suggests launches directly to the west in the direction of Ukraine government-controlled
territory and Mariupol.
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56
Figure 30. Point of Origin Analysis Area A (Pre-Incident).
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57
Figure 31. Point of Origin Analysis Area B (Pre-Incident).
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58
Figure 32. Point of Origin Analysis Area C (Pre-Incident).
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59
2. Post-Incident Point of Origin Analysis
69. Two likely BM-21 firing positions were found in post-incident imagery with
distinctive vehicle tracks and fading remnants of scorch marks visible (see Figures 33 and 34,
below). Since the attack on Mariupol occurred on 24 January 2015 and the available
imagery is from 18 February 2015, the imagery cannot be used to identify a precise date
when each of the additional firing positions was used. However, we can assess that both of
these locations were used to carry out MLRS attacks in the direction of Ukraine governmentcontrolled
territory around the time of the attack on Mariupol.
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60
Figure 33. Mariupol Possible Firing Position 1.
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61
Figure 34. Mariupol Possible Firing Position 2.
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62
C. Conclusions
70. Our analysis of available satellite and open-source imagery of the attack on
Mariupol indicates extensive damage to the Vostochniy neighbourhood. As demonstrated
above (see Figure 26), the Ukrainian National Guard locations on the outskirts of the city
were between 1.1 to 2.5 km from the mean point of impact in the Vostochniy neighbourhood,
and there is no evidence in available satellite imagery that the trenches east of the city were
occupied or continually used by National Guard personnel. Furthermore, as stated above,
there is no evidence of any strengthening of Ukraine’s defensive posture on the outskirts of
the city before the date of the attack.
71. Finally, as demonstrated above, we identified MLRS firing locations in DPRcontrolled
territory east of the city in the 15 to 19 km firing range assessed by General Brown.
We also identified possible D-30 Howitzer artillery within DPR-controlled territory on
satellite imagery dated 18 January 2015 (see Figure 30, above), which suggests this more
precise weapon system was available to DPR fighters in the region at least one week prior to
the attack.
IV. SHELLING OF THE RESIDENTIAL AREA OF KRAMATORSK — 10 FEBRUARY 2015
72. 30 images were sourced as available and relevant for the shelling in
Kramatorsk, taking into account the Kramatorsk residential area, the airfield, and potential
points of origin. In total, fives images were purchased covering the dates 8 January 2015 to
18 February 2015.
73. The closest useable satellite imagery of Kramatorsk, for both point of origin
and the residential area, available pre-incident was from 8 January 2015. As this was over a
month before the attack, no appropriate analysis of the attack could be identified from the
capture itself. The intervening imagery leading up to the attack on 10 February 2015 was
obscured by heavy cloud cover and unusable for analysis, and the closest date of imagery of
Kramatorsk post-attack, of a resolution high enough for meaningful analysis, was 13 April
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63
2015.47 For these reasons, we relied on handheld open-source imagery for our analysis of
damage to the Kramatorsk residential area.
A. Impact Location
1. Damage to Kramatorsk Residential Area
74. We relied on handheld open-source imagery to view areas of the Kramatorsk
residential area that had been hit by projectiles. We understand, based on General Brown’s
assessment, that the attack on Kramatorsk was conducted using a BM-30 “Smerch”
deploying cluster munitions.48 As explained in a report from the International Partnership
for Human Rights regarding the attack on Kramatorsk, BM-30 cluster munitions typically
deploy small fragments (see Figure 35, below).49 As each individual piece of metal is small in
diameter, much of the damage to the Kramatorsk area would not have been immediately
detectable on satellite imagery even if it had been available during the relevant time period.
47 The length of time between the attack and the available imagery meant that we could not rely on
satellite imagery to conduct accurate and credible damage analysis of the residential area after the
attack on 10 February 2015.
48 See Brown First Report, para. 61 (Ukraine’s Memorial, Annex 11).
49 See International Partnership for Human Rights, Rockets Hit Residential Area in Kramatorsk,
Ukraine (2015), p. 4.
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64
Figure 35. Fragments from BM-30 Cluster Sub-Munitions Collected at Kramatorsk.50
75. We did locate several open source images identifying the tail section of a BM-
30 rocket in the Kramatorsk residential area. Figure 36 (below) displays a BM-30 rocket tail
fin identified on 43 Lenin Street in Kramatorsk.51 Lenin Street is located north of the central
street in Kramatorsk and has residential buildings along the length of the street. Figure 37
(below) demonstrates the distance from the assessed location of the tail fin to the
Kramatorsk airfield.
50 International Partnership for Human Rights, Rockets Hit Residential Area in Kramatorsk, Ukraine
(2015), p. 4.
51 The location of the tail section was geo-located to 43 Lenin Street by identifying key characteristics
in satellite imagery, notably the residential buildings in the background of the photo, as well as the
street junction in the upper-left corner of the image.
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65
Figure 36. Tail Fin Identified in Kramatorsk Residential Area.52
52 Twitter,        ,
https://twitter.com/kramatorsk_ukr/status/565176911845134339 (10 February 2015).
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66
Figure 37. Distance from Assessed Tail Fin Location in Kramatorsk Residential Area to
Kramatorsk Airfield.53
53 Measurements are derived from satellite imagery and thus are subject to a small margin of error due
to the resolution of the imagery.
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67
76. Based on the impacts documented at the Kramatorsk airfield and residential
area by Ukrainian investigators (see Figure 38, below), General Brown identified potential
BM-30 fall of shot patterns for the attack.54 We plotted these potential fall of shot patterns
as ellipses on satellite imagery. These ellipses are oriented on a line of fire to target of 5900
mils (332 degrees) (General Brown’s assessed direction of fire for the 10 February 2015
attack on Kramatorsk). The findings demonstrate an impact spread at Kramatorsk that
exceeds the shot pattern from one volley of BM-30 rockets. The graphics illustrating these
potential BM-30 fall of shot patterns for the attack on Kramatorsk can be found at Figures 39
to 41 (below).
54 See Brown Second Report, para. 42 (Ukraine’s Reply, Annex 1).
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68
Figure 38. Documented Shelling Impacts at Kramatorsk (Ukraine’s Memorial, Map 5).55
55 Ukraine’s Memorial, Map 5 (demonstrating an approximately 5 km spread of impacts between the
Kramatorsk airfield and the residential area).
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69
Figure 39. Kramatorsk Fall of Shot Graphic 1.56
56 Ellipse size is based on the fall of shot pattern created by one volley of BM-30 rockets at 70 km
range. See Brown Second Report, Figure 16 (Ukraine’s Reply, Annex 1).
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70
Figure 40. Kramatorsk Fall of Shot Graphic 2.57
57 Ellipse size is based on the fall of shot pattern created by one volley of BM-30 rockets at 70 km
range. See Brown Second Report, Figure 16 (Ukraine’s Reply, Annex 1).
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71
Figure 41. Kramatorsk Fall of Shot Graphic 3.58
58 Ellipse size is based on the fall of shot pattern created by one volley of BM-30 rockets at 70 km
range. See Brown Second Report, Figure 16 (Ukraine’s Reply, Annex 1). The carrier element impact
zones are based on General Brown’s calculations regarding the distance carrier elements would travel
once a rocket fired at 70 km range has discharged its cluster munitions. See Brown Second Report,
para. 47(a) (Ukraine’s Reply, Annex 1).
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72
B. Potential Point of Origin
77. We were also asked to conduct imagery analysis in order to ascertain a
potential point of origin for the attack on Kramatorsk. General Brown assessed a potential
point of origin within a 10 km radius of the city centre of Horlivka, 50 to 70 km away from
Kramatorsk.59 Based on this assessment, we utilized 21 February 2015 Google Earth imagery
around the city of Horlivka to locate indications of potential MLRS firing positions.
78. In proximity to Horlivka’s city centre, we identified two positions that
contained key characteristics indicative of a probable firing position of a MLRS system.60
These positions were located at 48°18’20”N 38°8’2”E (Possible Firing Position #1) and
48°18’28”N 38°14’31”E (Potential Point of Origin #2).
79. Figure 42 (below) is a consolidated overview of this information plotted for
context and reference. Limitations of available imagery precluded an analysis within hours
of the attack, however they demonstrate that these areas within DPR-controlled territory
were used for probable MLRS launches towards Ukraine government-controlled territory.
Pre-incident Pleiades imagery of 18 January 2015 was used to assess patterns of life and to
conduct comparative analysis in order to detect vehicle tracks and scorch marks before and
after the attack. Post-incident World View 2 imagery from 13 February 2015 and Maxar
Google Earth imagery from 27 February 2015 was the nearest available imagery to analyse
after the attack.
59 Brown First Report, para. 65 (Ukraine’s Memorial, Annex 11).
60 We also identified other indications of BM-30 operating in the region, as well as another possible
BM-30 firing position, although we did not assess that this location was associated with the attack on
Kramatorsk.
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73
Figure 42. Kramatorsk Point of Origin Analysis Overview.
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74
1. Possible Firing Position 1
80. Possible Firing Position 1 was located within General Brown’s assessed 10 km
radius from the centre of Horlivka. At Possible Firing Position 1 (see Figure 43, below),
defined tyre tracks almost certainly identify vehicle movements in the field. Multiple sets of
tyre tracks suggest that several vehicles were active in this position. Each set of tracks
conducts a sharp turn, heading back to the outskirts of a field.
81. Within each set of tracks we identified an area of ground disturbance
associated with MLRS firing activity (assessed as ground scarring or scorching). Each area
of disturbance correlated to a set of tracks, which led us to assess this location as a probable
MLRS launch area. Each set of tracks indicate that the vehicles were facing in a northern
direction. As Kramatorsk is north to northwest of this firing position, there is a realistic
possibility that this position could have been used to target Kramatorsk on the day of attack.
82. Each set of tracks identified in this position were located approximately 20
metres apart (see Figure 44, below). A level of separation is often seen by MLRS units in
order to avoid damage to surrounding units when firing. It is likely that due to the close
proximity of each set of tracks, each vehicle would have been operating independently. The
size of the rocket fired by a BM-30 would require a larger safe separation distance if firing at
the same time, with 20 metres likely being too small of a distance for multiple BM-30
launchers to be operating at once. Analysis of the width of each set of tracks resulted in a
measurement of approximately 3 metres, allowing a small margin of error for satellite
imagery measuring software. The width of a BM-30 system is 3.1 metres,61 which is
consistent with the measurement of the track widths in the potential firing position.
61 See Bellingcat, Bellingcat Report - Origin of Artillery Attacks on Ukrainian Military Positions in
Eastern Ukraine Between 14 July 2014 and 8 August 2014 (17 February 2015).
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75
Figure 43. Kramatorsk Possible Firing Position 1.
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76
Figure 44. Kramatorsk Possible Firing Position 1 (Measurements).62
62 Measurements are derived from satellite imagery and thus are subject to a small margin of error
due to the resolution of the imagery.
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77
2. Possible Firing Position 2
83. Possible Firing Position 2 was located within General Brown’s assessed firing
area, 15 km from the centre of Horlivka. The possible firing position was located in a field on
the city outskirts of Horlivka, with multiple areas identified indicative of a probable MLRS
firing position.
84. Figure 45 (below) shows evidence of multiple vehicles operating in the field.
Each set of tracks is located 18 to 30 metres apart. As with Figure 44 (above), this is likely
indicative of units keeping a safe separation distance when firing, so they do not damage
surrounding vehicles.
85. Each set of tracks also face in a north to northwest direction. Kramatorsk is
located northwest of this position so it is a realistic possibility that this firing position could
have been used for the attack on Kramatorsk. The faded scorch marks are almost certainly
because of the elapsed time between the MLRS launch and the capture of the satellite image.
86. Analysis of the width of each set of tracks resulted in a measurement of
approximately 3 metres (see Figure 46, below). As stated above, the width of a BM-30
system is 3.1 metres which is consistent with the track width measurements observed in
imagery.
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78
Figure 45. Kramatorsk Possible Firing Position 2.
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79
Figure 46. Kramatorsk Possible Firing Position 2 (Measurements).63
63 Measurements are derived from satellite imagery and thus are subject to a small margin of error due
to the resolution of the imagery.
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80
C. Conclusions
87. Our analysis of the shelling attack on Kramatorsk demonstrates that the
documented spread of cluster munition impacts at the airfield and the residential area
exceeds the coverage area from one volley of BM-30 rockets, which supports General
Brown’s assessment that the airfield and the residential area were attacked separately.64
Additionally, we found evidence of a tail fin in the residential area 6.8 km from the centre of
the airfield (see Figure 37, above). As General Brown explains in his second report, given the
distance from the airfield to the location of the tail fin in the residential area it is highly
unlikely that this tail fin came from a BM-30 rocket targeted at the airfield.65
88. Finally, our point of origin analysis identified two possible BM-30 firing
positions in the vicinity of Horlivka and within General Brown’s assessed firing range of 50
to 70 km. These findings demonstrate that this area around Horlivka was used by the DPR
for likely MLRS launches towards Ukraine government-controlled territory around the time
of the attack on Kramatorsk.
64 Brown Second Report, para. 48(b) (Ukraine’s Reply, Annex 1).
65 Ibid., para. 47(a).
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81
V. STATEMENT OF TRUTH
89. We understand that our duty in giving evidence in this case is to assist the ICJ
in deciding the issues in respect of which expert evidence is adduced. We have complied
with, and will continue to comply with, that duty.
90. We confirm that this report contains our impartial, objective, and unbiased
opinion, which has not been influenced by the pressures of the dispute resolution process or
by any party to the proceeding.
91. We confirm that all matters upon which opinions have been expressed are
within our areas of expertise.
92. We confirm that, at the time of providing this written opinion, it is considered
to be complete and accurate and constitute our true, professional opinion.
93. We confirm that if, subsequently, these opinions require any correction,
modification or qualification, we will notify the parties associated to this case forthwith.
Signed in _Bristol, United Kingdom___________ on _April 19th_, 2022.
By: ____________________________________
Ms. Catherine Gwilliam
Signed in _Digby, United Kingdom____________ on _April 20th_, 2022.
By: ____________________________________
Air Vice-Marshal Anthony Sean Corbett
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82
Annex 1
Catherine Gwilliam
Geollect CEO/Co-Founder
Over 18 years’ experience as a Geospatial Intelligence Specialist with vast involvement across
multiple US government and commercial sectors. Served in the US Intelligence Community
with the National Geospatial-Intelligence Agency (NGA) as a specialist embedded within the
US Secret Service, US Navy Central Command, and US Department of Homeland Security.
Provided geospatial products in support of top-level protective operations, military and
diplomatic operations, disaster relief operations and critical infrastructure protection
missions. As CEO/Co-Founder of Geollect Limited, applying geospatial expertise and
commercial knowledge across public and private sectors with great success.
Career Summary
Chief Executive Officer/Co-Founder, Geollect Limited – Bristol, UK Jan 2017 - present
One of two co-founders of Geollect – a geospatial intelligence and data analytics company.
Developed the business strategy and carried the business from a concept phase to start-up
phase with an established customer base.
Head of Pre-Sales, Rezatec Ltd. – Harwell, Oxfordshire, UK Jan 2016 – Jan 2017
Lead for all pre-sales activity to include technical development, project management,
marketing, product demonstration, writing business proposals and developing pricing
strategies for geospatial data services for water utilities, energy infrastructure and
agriculture.
Branch Chief/Geospatial Analyst, NGA – Washington, DC, USA Jan 2011 – Dec 2015
Served various roles at NGA Headquarters and detailed to US Military, Intelligence,
Homeland Security and Law Enforcement agencies. Provided regionally focused custom GIS
products and analysis, structured data management, services, and training. Collabo-rated
with and supported US Federal, State and Local agencies, US Intelligence Agencies, and
Coalition partners globally to create geospatial products for military operations, homeland
security, law enforcement operations, protective security operations, counterterrorism, and
disaster relief operations. Received awards and recognition from the US Ambassador to
Bahrain, Naval Criminal Investigative Service (NCIS) leadership, and the Director of NGA.
NGA Headquarters – Springfield, VA, USA
• As Branch Chief, responsible for supervising analysts’ tasking and production, and
reviewing intelligence products before publication. Coordinated asset tasking based
on incoming intelligence requirements for a team of 10 imagery and geospatial
analysts.
• As Lead GEOINT Analyst (GA) on a regionally focused team, implemented
instrumental changes to the way geospatial data was captured and visualized,
resulting in more substantive analytic assessments. Using data mining techniques
and multiple datasets from various platforms, identified correlations in 3D space and
time, decreasing the time necessary to analyze specific patterns of activity or changes
in activity. Responsible for interpreting optical and synthetic-aperture radar (SAR)
imagery to identify specific assets within military targets, and track changes to targets
over time. Ensured the team followed data and metadata capture standards and
conducted quality control on all geospatial datasets. Using new online mapping
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83
capabilities, changed the way regional events were captured from collection of
imagery over specific target sets, displayed and disseminated to customers, which
included the major US Intelligence agencies.
US Navy Fifth Fleet Headquarters – Manama, Bahrain
• Supported US Navy Fifth Fleet Headquarters, Combined Maritime Forces Central
Command, United Kingdom Maritime Component Command, NCIS, CIA, DIA,
Diplomatic Security Regional Security Office, and other US Federal Agencies. As the
sole GA in a fast-paced command environment, balanced multiple competing tasks
with short deadlines, prioritized tasks based on customer’s needs, integrated multiple
geospatial and image data sources to create fused analytic products that had a direct
impact on mission success and enabled customers to create and maintain their own
GEOINT capabilities. Production included ad-hoc situational awareness map
products, exploitation of remote-sensing data, customized GEOINT charts and maps
and geospatial data packages in support of operations and strategic planning and
decision making. Key production efforts had major impacts on force protection and
protective security operations, as well as fleet intelligence indications and warning.
United States Secret Service (USSS) – Washington, DC, USA
• Provided geospatial products and services in support of security planning for global
travel of USSS protectees and the security operations of National and International
Security Special Events between 2012 to 2013. During the events, played a pivotal
role in establishing the use of a geospatial mobile application which tracks locations
of assets and captures events from the field into a geospatial data service and viewer.
Additionally, coordinated data requirements across NGA and US Federal, State and
Local agencies, created geospatial products, briefed USSS Field Offices, and ran NGA
operations during events.
US Department of Homeland Security (DHS) Office of Intelligence & Analysis –
Washington, DC, USA
• Played an integral role in helping develop, refine, and manage the geospatial imagery
and data requirements and standards for DHS. Provided geospatial support to
emergency management operations and analyzed effects on critical infrastructure for
various levels of manmade and natural disasters using remote sensing techniques.
Implemented a new standard for critical infrastructure mapping in preparation of
hurricane season, helping policy makers better plan disaster relief operations.
Geospatial Analyst, US Department of Homeland Security Jul 2009 – Jan 2011
Arlington, VA, USA
• As part of the DHS Office of Infrastructure Protection (IP), provided tailored
geospatial visualization and spatial analysis support focused on critical infrastructure
protection to the homeland security community at the local, state and federal level.
Collaborated with state and agency partners to share critical infrastructure data to
facilitate data exchange efforts and maintain accuracy in geospatial production
efforts. Served as the Project Lead, Geospatial Analyst, and Cartographer on various
GIS products provided to homeland security mission partners to refine their strategic
- 167 -
84
requirements and enhance their operations. As Project Lead, man-aged a team of 10
analysts on the production of a situational awareness map book for the 2010
Vancouver Olympics.
• Served as the Geospatial Analyst detailee to the DHS IP Incident Management Cell.
Created short-suspense geospatial products using GIS, remote sensing, and social
and physical sciences that fused critical infrastructure, intelligence and incidentspecific
data in support of major incident reporting for the Daily Update Brief to the
Assistant Secretary for IP.
• Served as a GIS facilitator for emergency management training to over 30 individuals
from 4 nations for the US Army Corps of Engineers Civil Military Preparedness
Program in Kyiv, Ukraine.
Staff Officer, NGA – Reston, VA USA Apr 2008 – Jan 2011
Senior Consultant, Booz Allen Hamilton – Norfolk, VA USA Jul 2004 - Apr 2008
Certifications
National System for GEOINT: GEOINT Professoinal Certification - Fundamentals
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85
Annex 2
Air Vice-Marshal Anthony Sean Corbett CB MBE MA RAF
Anthony Sean Corbett retired from the Royal Air Force in September 2018 after a 30-year
career as a professional intelligence officer, where he reached the pinnacle of his profession.
He then established a Defence, Security and Intelligence Directorate within a new-space
geospatial intelligence company, where he advanced innovative AI applications to earth
observation data in support of the defence and security sector. A long-term champion of
Open-Source Intelligence, he instigated the concept of ‘intelligence as a service’, leveraging a
wide spectrum of publicly available information to answer challenging questions for the
community. In October 2019, he set up his own business as a consultant specialising in the
provision of strategic advice, commercial intelligence, the space sector, and the optimisation
of organisational leadership and change management.
Sean has a wealth of operational experience and a deep understanding of the global
intelligence community from his time in the military, having served tours of duty in
Northern Ireland, Iraq, Afghanistan, Somalia, the Balkans, Libya and Central America. He
has commanded at every rank level, including a tour as Commander of the Joint Service
Signals Organisation, the Head of Intelligence at the UK’s Permanent Joint Headquarters
and as the Chief of UK Intelligence in Afghanistan, and has held leadership positions in a
number of single-source intelligence disciplines, (IMINT, GEOINT, SIGINT and OPINT).
He also has strong international credibility, having held the influential roles of Principal
Staff Officer to NATO’s Deputy Supreme Commander, Europe, and as the deputy UK
Military Representative to NATO. He also led the NATO Targeting Cell within the CAOC,
Vicenza, during the Kosovo crisis. Continuing the theme of working closely with allies and
partners, his last appointment in the military was two years in Washington DC as the first
non-US Deputy Director of a major US Intelligence Agency. His primary role here was to
optimise intelligence sharing with the ‘Five Eyes’ community, other US allies and partners,
by developing and implementing a transformational change programme throughout the US
intelligence community.
Sean was awarded an MBE is 1999 for his role in the Kosovo crisis and in 2018 was made a
CB. He is a senior associate fellow of the Royal United Services Institute (RUSI), the oldest
independent defence and security think-tank in the UK, where he acts as the geospatial
intelligence subject matter expert and is a member of the US Cipher Brief experts.
- 169 -
- 170 -
Annex 3
Second Witness Statement of Refat Chubarov (21 April 2022)
- 171 -
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 172 -
A.
B.
1
APPLICATION OF THE INTERNATIONAL CONVENTION FOR
THE SUPPRESSION OF THE FINANCING OF TERRORISM AND
OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION
OF ALL FORMS OF RACIAL DISCRIMINATION
UKRAINE
v.
RUSSIAN FEDERATION
________________________________________________________
WITNESS STATEMENT OF REFAT CHUBAROV
________________________________________________________
Introduction
1. I submitted a witness statement relating to my work as Chairman of the Mejlis
of the Crimean Tatar people during the provisional measures phase of these proceedings. I
provide this second witness statement to respond to Russia’s mischaracterization of the
Citizens’ Blockade of 2015 and its claim that the Blockade justified Russia’s ban of the Mejlis.
The Purpose of the Citizens’ Blockade of 2015
2. The Citizens’ Blockade refers to a peaceful, non-violent, open-to-the
Ukrainian and international public, civil action at the administrative border with Crimea, on
the mainland Ukrainian side, intended to stop the delivery of goods and services from the
mainland to the temporarily-occupied Autonomous Republic of Crimea and the City of
Sevastopol, which, in turn, contributed to the strengthening of the Russian occupation power
in Crimea, including its militarization.
3. The high-level objectives of the movement were: (1) to prevent actions by the
Government of Ukraine in the maintenance of economic, including energy, links with Crimea
that could cast doubt on Ukraine’s continuing sovereignty over the peninsula; (2) to put the
problem of Russian-occupied Crimea back on the agenda of Ukraine and the international
community with a view to achieving de-occupation and the restoration of Ukraine’s
territorial integrity; (3) to deter Russian efforts to colonize Crimea with its own citizens by
raising the cost to Russia of maintaining the occupation; and (4) to put pressure on the
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2
Russian occupation authorities of Crimea to observe elementary human rights in relation to
the inhabitants of Crimea.
4. The immediate aims of the Civil Blockade were approved by participants in
the action at a meeting on 21 September 2014 and announced in an official statement of the
headquarters of the action on the same day. 1 Noting that de-occupation would require
special conditions, the participants in the Civil Blockade declared that their actions would be
aimed at achieving the following specific goals:
 Effective protection of the rights and freedoms of citizens of Ukraine who live in the
territory of the temporarily occupied Crimea;
 Immediate cessation of repression and discrimination carried out by the Russian
occupation authorities in Crimea against the citizens of Ukraine — residents of
Crimea, activists of the Crimean Tatar national movement, members of the Mejlis of
the Crimean Tatar people and of local bodies of national self-government of the
Crimean Tatars;
 Immediate release of political prisoners: Akhtem Chiygoz, Ali Asanov, Rustem
Vaitov, Mustafa Degermendzhi, Ruslan Zeytullayev, Oleksandr Kolchenkp, Nuri
Primov, Ferat Sayfullayev, Nadezhda Savchenko, Oleg Sentsov;
 Lifting the ban on entry into Crimea on the leader of the Crimean Tatar people,
Mustafa Dzhemilev; the Chairman of the Mejlis of the Crimean Tatar people, Refat
Chubarov; public activists, Ismet Yuksel and Sinaver Kadirov;
 Cancellation of falsified criminal cases against Crimean residents — activists of social
movements;
 Ensuring conditions for the permanent presence on the territory of the temporarilyoccupied
Crimea of international missions, in particular the U.N. mission.2
5. In addition, the participants of the Civil Action called on the Verkhovna Rada
of Ukraine to cancel the Law of Ukraine “On Establishment of Free Economic Zone of
Crimea and Special Aspects of Economic Activity in the Temporarily Occupied Territory of
1 Facebook Post by Refat Chubarov (23 Sept. 2015) (Official Statement of the Headquarters of the
“Public Blockade of Crimea”) (Ukraine’s Reply, Annex 139).
2 Ibid.
- 174 -
C.
3
Ukraine,” No. 1636-VII dd. 12.08.2014 (the “Law on FEZ”),3 as one that does not meet the
goals and objectives of the de-occupation of Crimea and the restoration of the territorial
integrity of Ukraine. This Ukrainian legislation offered tax preferences and continued trade
and business opportunities to Ukrainian companies doing business in, and / or engaging in
trade with, Crimea, which in turn benefited the occupying authorities.
6. The Law on FEZ, which took effect on 27 September 2014, provided for tax
and customs benefits for enterprises engaging in commercial transactions between mainland
Ukraine and Crimea. Essentially, it enabled supplies of goods, on preferential terms, to
occupied Crimea, and, in my view, not only was indirectly sponsoring the Russian military
stationed in Crimea through the lucrative business between mainland Ukraine and the
peninsula that continued as usual, but contributed to the establishment of corrupt ties
between Kyiv and Simferopol, which was extremely unsafe in the conditions of the Russian-
Ukrainian war. The Law on FEZ did not serve any humanitarian purpose. In fact, data
suggested that 80 per cent of the goods delivered from mainland Ukraine to Crimea were resold
into Russia across the Kerch Bay. This was confirmed by Sergey Aksyonov, the Head of
the so-called Republic of Crimea, who stated that any blockade would not have an impact on
Crimea, as less than five percent of its supplies came from mainland Ukraine.
The Preparation for and the Initiation of the Citizens’
Blockade
7. In the weeks leading up to the initiation of the Civil Blockade, its organizers
held press conferences and consultations with stakeholders in the Ukrainian government to
ensure that our specific demands were clearly communicated. The initial announcement of
the plan was made in a press conference on 8 September 2015, where the original initiators
of the Blockade — Mustafa Dzhemilev, Lenur Islyamov, and myself — explained our specific
3 Law of Ukraine No. 1636-VII “On Establishing Free Economic Zone ‘Crimea’ and on Specifics of
Conducting Economic Activity in the Temporarily Occupied Territory of Ukraine” (12 August 2014)
(Ukraine’s Reply, Annex 90).
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4
demands to the Ukrainian society and the government of Ukraine. Of the three initiators —
Dzhemilev, Islyamov, and Chubarov — only I was, and am, a member of the Mejlis of the
Crimean Tatar people, while we all acted in our personal capacity. This point was reflected
in the Ukrainian press coverage of the announcement of the Blockade.4
8. After the initial announcement at a press conference and numerous
subsequent briefings on various TV channels and Internet resources, I once again made an
official announcement about the upcoming peaceful, non-violent Civil Blockade action on 14
September 2015 at a meeting of the conciliation council of parliamentary factions and groups
of the Verkhovna Rada of Ukraine, which is a body of the Parliament of Ukraine, uniting the
leaders of the Verkhovna Rada of Ukraine, heads of deputy groups and factions, and
chairmen of Committees. The initiators also discussed the demands with then-President of
Ukraine, Petro Poroshenko, and then-Prime Minister of Ukraine, Arseniy Yatsenyuk.
9. The initiators of the Civil Blockade hoped to garner broad public support,
both within Ukraine and from international observers. We made public the location of the
headquarters of the Blockade, and welcomed anyone who wished to join the initiative.
Messages began to arrive from different places in Ukraine about the desire to participate in
the announced action. Already on the first day of the action, 20 September 2015, its
participants, along with the Crimean Tatars, were representatives from many Ukrainian
public organizations. People’s deputies of Ukraine attended the Civil Blockade action
occasionally, while on the first day of the action, 20 September 2015, people’s deputies of
Ukraine of the eighth convocation — S. Semenchenko, I. Lutsenko, and V. Parasyuk —
attended the action. The role of people’s deputies was limited to communication with
participants of the action and explanatory conversations with drivers of vehicles crossing the
administrative line between the mainland of Ukraine and the temporarily-occupied Crimea.
4 See, e.g., Valentina Samar, Zone of Special Inattention, ZN.UA (11 September 2015) (Ukraine’s
Reply, Annex 186).
- 176 -
D.
5
10. Notably, while the Civil Blockade was an initiative consisting of a wide range
of individuals and organizations, the Mejlis did not play any separate role in it, or its
preparation. It did not make particular statements or decisions concerning the Blockade as
an institution. In fact, I consciously did not involve my fellow members of the Mejlis in the
discussion of the preparation and conduct of the Civil Blockade action, since I had every
reason to believe that the Russian occupation authorities would try to use the very fact of
holding a peaceful, non-violent action as a pretext for persecuting and repressing members
of the Mejlis of the Crimean Tatar people living in the occupied Crimea, as well as to
compromise the Mejlis as the highest representative body of the indigenous Crimean Tatar
people. As noted above, while I was among the initiators of the Civil Blockade, I did so in my
individual capacity, and not as Head of the Mejlis5 — or, for that matter, as member of the
Verkhovna Rada. Further, Mr. Dzhemilev, as a national leader of the Crimean Tatar people,
and I were committed to doing everything in our ability to keep the Blockade peaceful and
measured. The principle of non-violence, which is the fundamental principle of the Crimean
Tatar national movement for many decades of struggle against the totalitarian Soviet regime,
is extremely important for us even today, given our goal to ultimately bring meaningful
changes through legislative and / or administrative means.
11. It is dishonest for Russia to point to the Blockade as a basis to ban the Mejlis.
Russia’s heavy reliance on things that had allegedly been said and done by another organizer
of the Civil Blockade, Lenur Islyamov, who is not and has never been a member of the Mejlis,
further shows the baselessness of Russia’s claims.
The “Goods” and “Power” Blockades
12. The Citizens’ Blockade was intended to be, and was implemented as, a
peaceful and principled protest, within the territory of Ukraine. Starting on 20 September
2015, Blockade participants stood and marched at least several hundred meters away from
5 Ukrainska Pravda, Chubarov: Mejlis Did Not Make a Decision on Blockade of Crimea (19 February
2016) (Ukraine’s Reply, Annex 140).
- 177 -
6
the demarcation line with Crimea on the mainland Ukrainian side, near the checkpoints in
Kalanchak, Chaplinka, and Chongar. There were no interactions with Russian enforcement
officers, border authorities, or any other Russian representatives. In order to ensure human
rights to free movement, and in accordance with our goals, the Blockade participants
ensured the unimpeded movement of cars and passenger buses without interruption and
restricted only freight traffic. After the initial phase of the Blockade focusing on movement
of wholesale lots began, I and other initiators of the Civil Blockade and other civil activists
and reporters urged the Ukrainian government numerous times, both in their personal
requests and statements to the media, to introduce regulatory or legislative measures to halt
electricity supplies to the peninsula. Below, you may watch my speech at a meeting of the
Verkhovna Rada of Ukraine on 09 December 2015, which I conclude with the following
words: “I think this very hall, my colleagues, will not allow anyone now, not a single
minister, not a single government to sign an agreement on the supply of electricity, even if
they have to, until it says ‘Autonomous Republic of Crimea, Ukraine.’”6
13. As with the “Goods” Blockade, the “Power” Blockade consisted of a range of
individuals and organizations that voluntarily participated in their individual capacity. My
statements in support of the Blockade were made in my individual capacity — except when I
was acting in my capacity as a member of the Verkhovna Rada of Ukraine to introduce a bill
that would restrict the power supply from mainland Ukraine to Russian-occupied Crimea.
The Mejlis did not play any role in this phase of the Blockade, or its preparation. It did not
make official statements or decisions as an institution and no other members of the Mejlis,
besides Mr. Dzhemilev and myself, issued a statement on the Blockade, whether in support
or not.
6 Refat Chubarov, Speech given at Meeting 38, Session Hall of the Verkhovna Rada of Ukraine (09
December 2015) (Video), at https://www.rada.gov.ua/meeting/stenogr/show/6064.html (Ukraine’s
Reply, Annex 188).
- 178 -
7
14. My immediate outrage concerning the power issues was prompted by a clear
misstatement (whether deliberate or accidental) in the text of the agreement for the supply
of energy to Russian temporarily-occupied Crimea, which defined Crimea in accordance with
Russian terminology, i.e., the “Crimean Federal District” of the Russian Federation. On 23
November 2015, Prime Minister of Ukraine Arseniy Yatsenyuk called on the Prosecutor
General’s Office to investigate possible violations by those responsible for signing the
agreement. As with the “Goods” Blockade, my focus was on bringing changes through
legislative and / or administrative means. On 9 December 2015, I, along with other
members of the Verkhovna Rada, registered a bill that would, among other things, ban the
supply of fuel and energy sources to the occupied territories.
15. The demand for the energy embargo was also aimed at ensuring that Russia
direct its limited resources not at war, but at people’s lives. The electricity, produced in
Crimea, was more than enough for the hospitals, schools, and kindergartens in the
peninsula, but Russia was allocating a large share of the electricity supplies to its military
units, as well as for the electrification of housing, massively erected for the movement of
citizens of the Russian Federation to the territory of the occupied Crimea. Further, Russia
was boasting about its impending plans to replace energy supplies from mainland Ukraine
with its own supplies from mainland Russia.
16. When the overhead transmission pylons near Chaplinka, in the Kherson
region of Ukraine, were damaged on 21 and 22 of November 2015, participants of the
Blockade had varying views on whether it was appropriate to immediately resume the power
supply by the government of Ukraine. Some believed that no repair works should be allowed
until the occupying authorities accepted at least one of the Blockade’s demands. Some
believed that the repair operations should be allowed as a gesture of goodwill, but that the
supply to Crimea should not resume immediately.
17. My immediate reaction was that we should do everything possible to grant
unobstructed access to all required services to repair damaged power transmission lines in
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8
the Kherson region. When some of the Blockade participants did not accept this approach,
Mr. Dzhemilev and I communicated with the Blockade participants at the border, and with
the Ukrainian President, to clear up any misunderstanding on both sides and to prevent any
escalations. The compromise we found then allowed us to continue working on finding legal
solutions to the issue of cutting off the supply of electricity to the territory of the temporarilyoccupied
Crimea.
18. Complex discussions involving participants of the Blockade, government
stakeholders, and repair operation personnel ensued in the following days. Ultimately, the
repair crews began work on the Kakhovska-Tytan power line on 7 December 2015. Some of
the Blockade participants disagreed with the decision to allow the supply to resume and
withdrew from the Blockade. Looking ahead, I note that it was found, on the night of 31
December 2015 until 1 January 2016, the supply of electricity from the mainland of Ukraine
to the territory of Crimea was stopped. Russia’s suggestions that I, or the Mejlis, directed
this later damage inflicted upon the transmission lines is baseless and not true.
19. Eventually, on 16 December 2015, the Cabinet of Ministers of Ukraine
adopted Decree No. 1035, which limited passage of certain goods through the border
between Ukraine and the temporarily-occupied territory of Crimea.7 With the Blockade’s
stated goal accomplished by the end of 2015, the organizers thereafter announced the end of
the Blockade, which formally ended on 16 January 2016.8
20. I swear that the foregoing statement is true and accurate and agree to appear
before the Court as necessary to provide further testimony.
7 Decree No. 1035 of the Cabinet of Ministers of Ukraine, 16 December 2015 on restriction of supply of
certain goods (works, services) from the temporarily occupied territory to the other territory of
Ukraine as submitted by the Russian Federation for the Hearings on Provisional Measures (Annex
1267 to Russia’s Counter-Memorial), pp. 65-66.
8 Facebook Post of Rustem Irsay (16 January 2016) (“Last day of the civil blockade of occupied
Crimea. Now it’s the government responsibility to take care of it. We won!) (Ukraine’s Reply, Annex
187).
- 180 -
9
Signed in Kyiv, Ukraine, on __ April 2022.
By: [signature]
Refat Chubarov
- 181 -
- 182 -
Annex 4
Witness Statement of the Metropolitan of Simferopol and Crimea
Klyment (29 March 2022)
- 183 -
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 184 -
APPLICATION OF THE INTERNATIONAL CONVENTION
FOR THE SUPPRESSION OF THE FINANCING OF TERRORISM AND THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF
RACIAL DISCRIMINATION
UKRAINE
versus
THE RUSSIAN FEDERATION
_______________________________________________________
WITNESS STATEMENT OF THE METROPOLITAN OF SIMFEROPOL AND
CRIMEA KLYMENT
_______________________________________________________
1. My secular name is Pavlo Mykolaiovych Kushch, although usually,
according to the church tradition and rules, I am referred to as the Metropolitan of
Simferopol and Crimea Klyment as the head of the Crimean eparchy of the Orthodox
Church of Ukraine. I graduated from Kyiv Theological Seminary in 1997. I was
ordained a priest of the Ukrainian Orthodox Church of Kyiv Patriarchate. Since 2000, I
have been the head of the Crimean eparchy.1 I had the rank of a bishop
from 2000 to 2012, and since 2012 I have the rank of a metropolitan. Since 2020, I
have the rank of the Metropolitan of Simferopol and Crimea. I worked closely with the
Ukrainian community of Crimea before, during, and after the occupation of the
peninsula by the Russian Federation. I have agreed to give this statement to present my
view of the discrimination faced by this community under Russian rule.
The Importance of the Ukrainian Orthodox Church for the Ukrainian
Community in Crimea
2. For a long time, the Orthodox Church was the main embodiment of
Christianity in Crimea as well as throughout Ukraine. After decades of persecution by
the communist authorities in the Soviet Union, in Crimea Orthodoxy appeared again in
the early 1990s as a strong spiritual force for the formation of Ukrainian statehood and
1 Certificate of the Ukrainian Orthodox Church of Kyiv Patriarchate No. 390 (3 July 2017) (Ukraine’s Reply,
Annex 180).
- 185 -
2
did it with a special Ukrainian flavor. For the past several centuries, the Orthodox
Church was under the control of Moscow Patriarchate throughout the region. While
Ukraine gained its independence from the Soviet Union, many adherents of Orthodoxy
in the country wanted their Church to have similar autonomy. Ukrainian
Autocephalous Orthodox Church was restored in 1990, about 60 years after it was
banned by the Soviet authorities in 1930. Ukrainian Orthodox Church of Kyiv
Patriarchate (abbreviated as UOC-KP) was founded separately as a component of
supporting the spiritual life of the Ukrainian people who wished to be free from the rule
of Moscow. The desire of Ukrainian churches for local control over their affairs was
fiercely opposed by Moscow Patriarchate which still seeks to defend its hegemony over
the centralized Russian Orthodox Church.
3. During the Russian occupation of Crimea in the spring of 2014, I was
the head of Kyiv Eparchy of UOC of Kyiv Patriarchate in the Autonomous Republic of
Crimea and served as a bishop within the eparchy. The Unified Local Ukrainian
Orthodox Church was established at the Unification Council on 15 December 2018 by
merging Ukrainian Orthodox Church of Kyiv Patriarchate, Ukrainian Autocephalous
Orthodox Church, and part of Ukrainian Orthodox Church of Moscow Patriarchate into
a unified Local Church which on 6 January 2019 received the Patriarchal and Synodal
Tomos of the Ecumenical Patriarchate on autocephaly. Since 15 December 2018 I am
the head of the Crimean eparchy of the Orthodox Church of Ukraine in the
Autonomous Republic of Crimea. After the Unification Council held
on 15 December 2018 and the beginning of the Russian occupation in Ukraine, most
parishioners elect the Orthodox Church of Ukraine not only because of their faith in
God, but also because of the national identity, wishing not to deal with the Ukrainian
Orthodox Church of Moscow Patriarchate which supports Russian aggression in
Ukraine.
4. After the first parish of the Ukrainian Orthodox Church of Kyiv
Patriarchate (since 2018 — the Orthodox Church of Ukraine) was formed in the
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3
Autonomous Republic of Crimea in 1995, the Church became the center of Ukrainian
culture and spirituality in Crimea. For the ethnic Ukrainians of Crimea, the Church
promotes the Ukrainian language and national traditions, in particular during divine
services in the churches where the clergy pray and preach in Ukrainian. For the parents
who want their children to be educated in Ukrainian or to study Ukrainian history and
culture in general, the Orthodox Church of Ukraine in Crimea is a Ukrainian national
and cultural center that provides children with the opportunity to get Ukrainian
education, in particular, through the functioning of Sunday schools, libraries, study
groups. The Church also broadly supports Ukrainian culture. For example,
about 50 paintings by Ukrainian artists and about 300 Ukrainian icons and handmade
towels are kept in the cathedral of St. Volodymyr and Olha in Simferopol.
5. After Russia's occupation of Crimea, I believe that the Church has a
special mission — to unite the Ukrainian community in Crimea and preserve the
national identity by providing assistance and support. One of the tasks assigned to me
as the head of the Crimean eparchy was to assist Ukrainian political prisoners who
were kidnapped, convicted and stay in Russian prisons and colonies. I know some
political prisoners who were the founders and promoters of Ukrainian cultural projects
personally. Among them are Andrii Shchekun and Anatolii Kovalskyi who were
kidnapped in 2014 during the annexation of the Crimea by the Russian Federation.
Russian occupation authorities offer protection subject to my support for the
annexation.
6. Together with Andrii Shchekun and Anatolii Kovalskyi, I participated
in the organization of a rally in Simferopol on 9 March 2014 to support the
continuation of the existence of Crimea as part of independent Ukraine. Two of my
colleagues were kidnapped on the way to that rally when they stopped at Simferopol
station to pick up the materials for the meeting. Given the above, it is quite natural that
I became the first and obvious critic of the Russian plan of annexation of Crimea which
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4
became apparent after the establishment of the regional government by the Russian
armed forces on 27 February 2014.
7. On 20 March 2014, I gave an interview to Echo of Moscow Radio, in
which I opposed Russia's annexation of Crimea again. On 21 March 2014, I received a
call from Igor Strelkov (also known as Girkin), who introduced himself as an adviser on
security and defense of the Council of Ministers of the Republic of Crimea. Strelkov
asked if we could meet, and at 16:00 I was with him in office No. 222 on the second
floor of the Council of Ministers building in Simferopol. Strelkov started the meeting by
saying that he was meeting with me as agreed with Patriarch Kirill of Moscow and All
Russia. Strelkov told me that I would be safe, and my church would be protected if I
agreed to sign the document, to be published in press, confirming that in Crimea
everything was calm and quiet, and no illegal actions were taken against Kyiv
Patriarchate. I pointed out that I was ready to do so, and during the meeting Strelkov
printed out and then signed and stamped a document in which he called me the person
responsible for preserving the property of the Ukrainian Orthodox Church of Kyiv
Patriarchate in Crimea and said that I had the right to apply directly to the Head of the
Republic of Crimea Serhii Aksenov in the event of a conflict.2 The document was
printed using an official pre-printed form, although, ironically, that form was a form of
the Autonomous Republic of Crimea, i.e. the Republic of Crimea not controlled by
Russia. It was agreed that Strelkov's assistant would agree with me the text of the
statement which I had to make in response.
8. I received the draft statement on 21 March 2014 at 18:12 from Serhii
Kovtan, Strelkov's assistant, who sent it to me by email ([email protected]). The text
was mostly neutral. I was concerned about the very end of the appeal: "as it happens
now in the Crimea". I was worried that by signing this appeal, I would be perceived as
someone who supported the annexation of the peninsula by Russia. I consulted with
2 Certificate of the Cabinet of Ministers of the Autonomous Republic of Crimea No. 064-3 (20 March 2014)
(Ukraine’s Reply, Annex 181).
- 188 -
5
my colleague in Ukrainian Orthodox Church of Kyiv Patriarchate, Archbishop
Yevstratii of Chernihiv and Nizhyn (Zorya), who agreed that this sentence should be
deleted from the text.
9. In a further telephone conversation with Strelkov, he made it clear
that this sentence was the crucial point in the text from his point of view. Although I
had further communication with Strelkov and his assistant on the text, we never agreed
on a text I could sign, and the idea eventually disappeared when Strelkov left Crimea
later that spring. I did not sign any letter or appeal in support of the annexation of
Crimea and the new "government", but I attached to this statement an e-mail that I still
have, which sets out the text of the statement that Girkin wanted me to make.3
10. There was another impressive aspect of my meeting with Strelkov in
the building of the Council of Ministers on 20 March 2014. As I have already
mentioned, my colleagues Andriy Shchekun and Anatolii Kovalskyi were kidnapped
on 9 March 2014, and since then there has been no information about their place of
stay or condition. Naturally, I was worried about their safety, especially given the
terrible consequences of other recent disappearances committed against members of
the Crimean Tatar community. I considered a meeting with Strelkov as an opportunity
to speak out for their defense, and, accordingly, at the end of the conversation with him
asked what would happen to them. Strelkov replied without hesitation: "Don't worry,
they will live." Later that day, I learned that both men were released from custody and
returned to their families. It was then clear to me that Strelkov was fully informed of
their place of stay and the conditions in which they were held.
Persecution of the Ukrainian Church in Crimea Since 2014 and Its Impact on the Rights
of the Ukrainian Community
11. I believe that my unwillingness to have my name mentioned in the
statement in support of the annexation is the reason for the current campaign of the
Crimean and Russian authorities aimed at closing Ukrainian Orthodox Church in
3 Electronic message from S. Kavtan (21 March 2014) (Ukraine’s Reply, Annex 189).
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6
Crimea. This campaign had a large impact on the life of the Ukrainian community,
depriving it of the protection of the institutional structure that previously provided
meeting places where the community members could gather, as well as educational and
cultural programs focused on their shared Ukrainian identity.
12. The attack on the Ukrainian church began shortly after the events
described in the previous Section. The Church of the Holy Apostles Peter and Paul and
Nicholas the Wonderworker, Archbishop of Myra of Lycia was located at the training
center of the Naval Forces of Ukraine at: 1 Lazarevska Street, Square 27, in Sevastopol.
The church was used by the Crimean eparchy of Kyiv Patriarchate to perform divine
services and meet the religious needs at the military base of both military servicemen
and parishioners of Kyiv Patriarchate living in Sevastopol. On 21 April 2014, the
command of the Black Sea Fleet of the Russian Federation informed the administration
of the Crimean eparchy about the closure of the church in Sevastopol and offered them
to remove all property. On 1 June 2014, at the request of the Captain of the First Rank
Leonid Zinchenko (commander of the Russian military base that took control of the
Training Centre), access control was introduced on the territory of the base, preventing
access to the senior priest, other clergy, and parishioners. This made divine services
impossible.
13. Later, in June 2014, a second church was taken away from Kyiv
Patriarchate, when the Church of the Intercession of the Blessed Virgin Mary in
Perevalne was seized by the Russian military servicemen and transferred for use to a
priest representing Moscow Patriarchate.4 I filed a lawsuit with the court seeking to
return ownership of this church. The case was considered by the Supreme Court of the
Russian Federation, but its outcome was unsuccessful.5
4 M. Kanarskaya, The temple of the Ukrainian Orthodox Church of the Kyiv Patriarchate in Perevalne was
taken away. In whose favor?, Krym.Realii (1 June 2014) (Ukraine’s Reply, Annex 174).
5 Ruling of the Supreme Court of the Russian Federation No. 310-ES19-8542 (19 June 2019) (Ukraine’s Reply,
Annex 99).
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7
14. Elsewhere in Crimea the presence of the Ukrainian church was
reduced due to other acts of discrimination against the Ukrainian community. One of
our priests, Yaroslav Hontar, was forced to leave Crimea with his family after his
children, who studied in the Ukrainian class at Yevpatoria School No. 13, were
physically abused by ethnic Russians, who studied at the same school. In April 2014,
the Ukrainian language class was disestablished because the parents of the children
who attended it were not ready for their children to live under the threat of violence,
which the teachers turned a blind eye to. Only after moving to mainland Ukraine could
this priest continue educating his children in Ukrainian. Another priest, Ivan Katkalo,
who served in the church of the military complex in Simferopol, was evicted from his
home together with his family, including his daughter with cerebral palsy, by Russian
cossacks. This family also had no choice but to move to mainland Ukraine.
15. At the end of the first year of the occupation, 34 out of 45 parishes of
Kyiv Patriarchate ceased to exist (11 ones continued to exist), and only 9 out
of 14 priests were able to perform divine services. Because of these acts of intimidation
and inability of the Russian occupation authorities to protect the rights of the church
and its clergy after 2014, the activities of Kyiv Patriarchate were largely focused on
Simferopol and, in particular, its main church — Cathedral of Equal-to-the-Apostles St.
Prince Volodymyr and St. Princess Olha located at 17A Sevastopolska St. in Simferopol.
16. The main cathedral of the Crimean eparchy has undergone increasing
pressure from the Russian occupation authorities. The church is used on the basis of a
lease agreement entered into for the term of 50 years with the State Property Fund of
the Autonomous Republic of Crimea in 2000.6 However, the Ministry of Property and
Land Resources of the Republic of Crimea is currently trying to cancel the lease
6 Resolution of the Verkhovna Rada of the Autonomous Republic of Crimea No. 1801-2/01 “On transfer to the
Crimean Eparchy of the Ukrainian Orthodox Church of the Kyiv Patriarchate of part of the building located at
17 Sevastopolskaya St., in the city of Simferopol” (16 May 2001) (Ukraine’s Reply, Annex 190). Contract of
lease of real property that belongs to the Autonomous Republic of Crimea (13 November 2002) (Ukraine’s
Reply, Annex 191).
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8
agreement on the grounds that the church is not registered under Russian law. In 2017,
the employees of the ministry based on the eviction order seized the first floor of the
building occupied by the cathedral. The physical strength of the Russian occupation
forces was such that my arm was broken and my back was injured during the
operation. While the cathedral retains ownership of the second and third floors of the
building where the collection of Ukrainian paintings and icons mentioned earlier in
this statement is stored, the ministry continues its campaign in Russian courts, using
the absence of registration of the Ukrainian Orthodox Church to ensure rendering of
court decisions in their favor, including the decisions of the Supreme Court of the
Russian Federation.7
17. At the time of submitting and signing of my witness statement for the
court, on 17 February 2022 the Ukrainian Parliament (Verkhovna Rada) adopted
Resolution No. 2077-IX "On Certain Issues of Protection of the Right to Freedom of
Conscience and Religion of Believers of the Crimean Eparchy of the Ukrainian
Orthodox Church (Orthodox Church of Ukraine) and Preservation of the Premises of
the Cathedral of St. Volodymyr and St. Olha."8
18. The registration requirements established by the Russian occupation
authorities will require the church to recognize the legitimacy of the Russian rule in
Crimea. For this reason, in 2014 I made a fundamental decision not to apply for
registration or re-registration of the parishes of the Crimean eparchy. However, as the
pressure on the clergy of the Crimean eparchy intensified, and the fact of the absence of
its registration was used against it by the Russian judicial system, we have no choice
but to proceed with the process of registering the religious communities under Russian
7 Ruling of the Supreme Court of the Russian Federation No. 310-ES18-18876 (23 November 2018) (Ukraine’s
Reply, Annex 100).
8 Resolution of the Verkhovna Rada of Ukraine No. 2077-IX "On Certain Issues of Protection of the Right to
Freedom of Conscience and Religion of Believers of the Crimean Eparchy of the Ukrainian Orthodox Church
(Orthodox Church of Ukraine) and Preservation of the Premises of the Cathedral of St. Volodymyr and
St. Olha” (17 February 2022) (Ukraine’s Reply, Annex 93).
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9
law. Like many other Ukrainian organizations in Crimea, we have since then found how
the Russian authorities use the complexity of their registration procedures to
arbitrarily deny legal protection to disadvantaged groups. For religious organizations,
for example, Russian laws require 10 sponsoring Russian citizens to submit their
personal information along with an application for registration. This is a difficult
barrier for us, given that our supporters are generally reluctant to become Russian
citizens, despite the Russian government's efforts to impose this on them. Another
example of the arbitrary nature of the registration system is the requirement for the
applicants to complete a questionnaire on their confession of faith, with written
answers to 50 questions to be submitted to the Ministry of Justice of Crimea.
19. These extremely complex procedures provide the authorities with
enormous opportunities for arbitrary denial of registration. Thus, the Ministry of
Justice dismissed our first application and recommended that we supplement it with
one paragraph when making our next attempt. Having added this paragraph, when
dismissing our third application, the ministry stated that we should remove the same
paragraph. Following the failure of our fourth application, the ministry informed us
that we would never be registered unless we reached an agreement with the Russian
authorities.
20. As a result of these bureaucratic games, the Russian authorities and
"Crimean authorities" may continue to use the fact of the absence of our registration
against us as a ground for confiscating or destroying church property. Without
registration, the church is not recognized as a legal entity, which prevents us from
entering into agreements, opening bank accounts, renting the premises necessary for
the joint divine services for our parishioners.
21. For example, in Yevpatoria before the Russian occupation the church
built a wooden chapel in the typical Ukrainian style, which was completed in 2013.
Now the Russian authorities ordered to destroy it because it was allegedly built without
permit, despite the fact that the building is located on a land-plot owned by the
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10
community with which we reached an agreement, and the Ukrainian authorities have
never objected to this construction.9 The land occupied by the church is not needed for
any other purpose, so I can only interpret this action as punishing the Ukrainian
community for refusing to agree to Russia's control over Crimea.
22. As I have already explained in this witness statement, the impact of
these repressions on the Ukrainian community goes far beyond religion. For many
Ukrainians in Crimea, their commitment to the doctrine of Ukrainian Orthodox Church
is an important element of their identity as Ukrainians. Therefore, the attempts of the
Russian occupation authorities to destroy this church are a direct attack on their
identity. The repressions have a number of other direct practical implications for the
continued viability of the Ukrainian community, depriving its members of a safe space
to meet and honor their Ukrainian values, further limiting Ukrainian education, which
is already severely constrained in the public sphere and threatening important
Ukrainian cultural heritage, such as the one kept in the Cathedral of St. Volodymyr and
St. Olha in Simferopol.
23. The contrast of this growing exclusion of Ukrainian culture from social
life in Crimea is the propaganda of Russian culture and values by the authorities. In my
experience, an example of this process is the growing dominance of Moscow
Patriarchate of the Orthodox Church in Crimea. The hand of Moscow Patriarchate is
clearly visible in my description of the statement which I was offered to sign by Igor
Strelkov, allegedly with the consent of Patriarch Kirill. At a more practical level,
churches and other property seized from Ukrainian Orthodox Church in Crimea have
consistently been transferred into the possession of priests and other officials
representing Moscow Patriarchate.
9 Default judgement of Yevpatoria City Court in Case No. 2-2176/2019 (6 November 2019) (Ukraine’s Reply,
Annex 101).
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11
24. I swear that the above witness statement and explanations are true
and accurate, and I agree to appear before the Court if necessary to provide additional
statements.
Signed in Kyiv, Ukraine, on __ March 2022.
Signature: __________________________
Metropolitan of Simferopol and Crimea
Klyment (secular name: Pavlo Mykolaiovych
Kushch)
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- 196 -
Annex 5
Second Expert Report of Sandra Fredman (21 April 2022)
- 197 -
- 198 -
INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE
SUPPRESSION OF THE FINANCING OF TERRORISM AND OF THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF
RACIAL DISCRIMINATION
between
UKRAINE
and
THE RUSSIAN FEDERATION
SECOND EXPERT REPORT OF PROFESSOR SANDRA FREDMAN
- 199 -
Russia's Russia's 1 Convention's "effect," respondent's "political" Russia's Russia's one's Russia's
1 ("CERD"), 11
I. Introduction
1. I have been asked by counsel to Ukraine to address certain points of
disagreement with my initial report in this case arising from Russia’s Counter-Memorial and
supplementary materials.
2. I first consider, in Section II, Russia’s contention that Ukraine must show that
Russia intended to discriminate in order to establish a claim of discrimination. Based on an
analysis of the International Convention on the Elimination of All Forms of Racial
Discrimination (the CERD or the Convention),1 and in particular, the Convention’s express
language allowing claims based on “purpose or effect,” I conclude that proof of intent is not
necessary for a claim under the Convention.
3. In Section III, I address whether an underlying political motivation for racial
discrimination renders a claim one of political discrimination that is outside the scope of the
CERD. I conclude that a respondent’s underlying motivation for discrimination, including a
motivation based on purportedly “political” considerations, cannot serve to remove a
discrimination claim from the ambit of the CERD, as long as all other requirements are met.
4. In Section IV, I analyse Russia’s claim that ethnicity is immutable and cannot
be defined, even in part, by shared beliefs or outlooks. I review the analysis from my
previous report, concluding that ethnicity is a dynamic concept that is capable of evolving
over time, including in response to significant political and social upheaval, and I examine
the role of shared beliefs or outlooks in defining ethnicity, finding that such beliefs can be a
relevant factor in demarcating a particular ethnic group.
5. Finally, in Section V, I discuss Russia’s claim that no specific right to
education in one’s own language is protected by the CERD. I conclude that, even if Russia’s
1 UN Convention on the Elimination of All Forms of Racial Discrimination
(“CERD”), 660 U.N.T.S. 195 (1965), entered into force 4 January 1969.
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Russia's Russia's Russia's Ukraine's CERD's "discrimination" "effect" "effect" ("ICJ") ("UAE"), "effect."2
2 22
premise is correct, this does not preclude a violation of the right to enjoy education without
distinction as to ethnic origin, as protected by Article 5 of the CERD.
II. Russia’s attempt to require Ukraine to show proof of intent ignores the fact that
the CERD embraces both intentional and effects-based claims.
6. In my first report, I examined the concept of indirect, or effects-based,
discrimination in international human rights law, and I concluded that a showing of intent to
discriminate is not required in order to establish such claims of discrimination. In its
Counter-Memorial, Russia argues that, because Ukraine has characterized Russia’s conduct
as constituting a systematic campaign of racial discrimination, Ukraine must prove intent as
to each element of Russia’s discriminatory conduct. In Section A, I will demonstrate that
effects-based discrimination claims are permitted by the CERD and do not require a showing
of intent to discriminate, and that Ukraine’s reference to a systematic campaign of racial
discrimination does not require a different evidentiary standard for such claims. In Section B,
I will set forth the proper framework for evaluating such claims under the CERD.
A. The CERD’s definition of discrimination expressly includes both intentional and
effects-based discrimination.
7. Article 1(1) of the CERD defines “racial discrimination” as a distinction,
exclusion, restriction or preference based on race which has “the purpose or effect” of
nullifying or impairing the enjoyment of rights and freedoms. The reference to “purpose or
effect” demonstrates that discrimination can be based on either purpose or effect. This
interpretation was recently affirmed by the International Court of Justice (“ICJ”) in Qatar v.
United Arab Emirates (“Qatar v. UAE”), where the Court stated that racial discrimination is
prohibited, “whether arising from the purpose of a given restriction or from its effect.”2
2 Qatar v. United Arab Emirates, International Court of Justice, Preliminary
Objections, Judgment, 4 February 2021, para. 112.
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"effect" "effect."
("14"), "[freedoms," "by" 3 "them."4
5 3 ("Committee"),
Ukraine's 4 VS. 5 33
Given that the phrase “purpose or effect” is clearly disjunctive, there is no need to establish
purpose to establish discrimination based on “effect.”
8. This conclusion is supported by General Recommendation 14 of the CERD
Committee (“GR 14”), which states that “[a] distinction is contrary to the [CERD] if it has
either the purpose or the effect of impairing particular rights and freedoms,” and that conduct
will violate the CERD if it “has an unjustifiable disparate impact upon a group distinguished
by” criteria in Article 1 of the CERD.3 To establish a breach of the CERD therefore requires
a showing either of purpose or of unjustifiable disparate impact on a protected group.
9. The separation of purpose from effect in the definition of discrimination
further entails that, where discriminatory effect is at issue, there is no requirement to prove
that the perpetrator has a discriminatory intent. In its Opinions in individual complaints, the
CERD Committee has regularly affirmed in particular that “presumed victims of racial
discrimination are not required to show that there was discriminatory intent against them.”4
Instead, once a pattern of behaviour is shown which raises a prima facie case of
discrimination, the burden shifts to the respondent to show that this was not discriminatory.
10. In Gabaroum v. France, the petitioner gave many examples of behaviour by
the respondent which he alleged were based on his race or ethnic origin. The CERD
Committee held that France was wrong to require him to prove intent.5 The same is true of
V.S. v. Slovakia, where the petitioner suspected that she had been discriminated against
because of her Roma origin, when she was denied a teaching position at a school. The
3 UN Committee on the Elimination of Racial Discrimination (“CERD Committee”),
General Recommendation No. 14 (1993), paras. 1-2 (Ukraine’s Memorial, Annex 788).
4 CERD Committee, Opinion Concerning Communication No. 52/2012 (Gabaroum v.
France), decided 10 May 2016, para. 7.2; see also CERD Committee, Opinion
Concerning Communication No. 56/2014 (V.S. v. Slovakia), decided 4 December 2015,
para. 7.4.
5 Gabaroum v. France, para. 7.2.
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"courts' Convention's effect."6
("CEDAW"),7 "of" 8 ("HRC") "discrimination" ("ICCPR") "effect" 9 ("Committee") "of 1°
CERD's 6 V. S. 7UN ("CEDAW"), 8 9 Ukraine's 1° Ukraine's
44
Committee declared in its opinion: “The Committee considers that the courts’ insistence that
the petitioner prove discriminatory intent is inconsistent with the Convention’s prohibition of
conduct having a discriminatory effect.”6
11. This interpretation of effects-based discrimination in the CERD is consistent
with that in other international human rights instruments. For example, the Convention on
the Elimination of All Forms of Discrimination against Women (“CEDAW”),7 like the
CERD, defines discrimination as a “distinction, exclusion or restriction made on the basis of
sex which has the effect or purpose of” restricting certain rights and freedoms.8 Further, the
Human Rights Committee (“HRC”) has drawn on the definition of discrimination in Article 1
of the CERD and Article 1 of CEDAW to conclude that “discrimination” in the International
Covenant on Civil and Political Rights (“ICCPR”) should be understood to mean distinctions
based on impermissible grounds which have “the purpose or effect” of restricting certain
rights and freedoms.9 Similarly, the International Covenant on Economic, Social and
Cultural Rights Committee (“ICESCR Committee”) has defined discrimination as any
restriction “that is directly or indirectly based on the prohibited grounds of discrimination and
which has the intention or effect of” limiting the relevant rights.10
12. Therefore, the CERD’s plain language, along with the interpretation of the
Convention espoused by both the ICJ and the CERD Committee, make clear that a
6 V.S. v. Slovakia, para. 7.4.
7 UN Convention on the Elimination of All Forms of Discrimination Against Women
(“CEDAW”), 1249 U.N.T.S. 13 (1979), entered into force 3 September 1981.
8 Ibid., Article 1 (emphasis added).
9 HRC, ICCPR General Comment No. 18 (1989), paras. 6-7 (Ukraine’s Memorial,
Annex 787).
10 ICESCR Committee, General Comment No. 20 (2009), para. 7 (Ukraine’s
Memorial, Annex 755).
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Russia's "`target' `such' `membership' group)."11
Ukraine's Ukraine's Ukraine's Ukraine's 11 ("Russia's
Memorial"), 55
discrimination claimant may allege effects-based discrimination and, in such cases, need not
show intent or purpose.
B. The purported requirements to establish a discrimination claim set out in
Russia’s Counter-Memorial fail to recognize the distinction between claims of
intentional and effects-based discrimination.
13. In its Counter-Memorial, Russia argues that, because Ukraine has labelled its
conduct a systematic campaign of racial discrimination, Article 1(1) of the CERD requires
three elements to be cumulatively proven: (A) the systematic nature of any distinction;
(B) the disproportionate effect on Crimean Tatar or Ukrainian communities as compared to
persons of other ethnic origin or other residents in a similar situation; and (C) that the
distinction is a “result of the intent to specifically and ‘directly target’ these communities ‘as
such’ (in other words, the victims must be ‘targeted by reason of their membership’ in a
national or ethnic group).”11
14. To the extent that Russia is arguing that Ukraine’s reference to a systematic
campaign requires application of a different evidentiary standard than usual, I disagree. The
CERD does not contain language defining systematic campaigns of racial discrimination as
a distinct breach, or defining evidentiary standards particular to allegations of systematic
discrimination. I accordingly understand Ukraine’s case to be that Russia has committed
multiple violations of the CERD which, viewed in the aggregate, constitute a systematic
campaign of racial discrimination. It follows that the correct approach is to assess each of
Ukraine’s claims under the standards set forth in the Convention and, if necessary, for the
Court to take a view on Ukraine’s characterization of the aggregate impact of any violations
only once it has ruled on the individual claims.
11 Counter-Memorial of the Russian Federation, Part II, 9 August 2021 (“Russia’s
CERD Counter-Memorial”), para. 93, et seq. (internal emphasis and footnotes omitted).
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Ukraine's 12 Committee's RA.14 15 12 Ukraine's ("Directive") Ukraine's 13 Ukraine's 14 Russia's 15 RA.66
15. The framework proposed by Russia for assessing Ukraine’s claims is not
applicable to effects-based claims. There is no authority for step (A), that is, the need to
prove the systematic nature of a distinction. Rather, there should be a law, practice or policy
which appears neutral on its face but which has a disparate impact.12 Nor is there a need, as
claimed in step (C), to establish intent to specifically and directly target these communities.
As demonstrated above, this would negate the difference between a claim based on purpose
and one based on effect.
16. Russia relies on the CERD Committee’s Opinion in A. W.R.A.P. v Denmark13
for the proposition that Article 1(1) requires that the effect of the action be a result of the
intent to specifically and directly target a particular community as such.14 However, this
was a complaint under Article 4(a) of the Convention, which refers to hate speech on racist
grounds. The petitioner claimed that a particular politician had used hate speech directed
against Muslims and Muslim culture.15 The complaint was therefore not an effects-based
12 This elaboration of the steps needed to establish effects-based discrimination is well
established in international, regional, and domestic human rights law. See, e.g., ICESCR
General Comment No. 20, para. 10(b); Case of D.H. & Others v. The Czech Republic,
ECtHR Application No. 57325/00, Grand Chamber Judgment (13 November 2007), para.
184 (Ukraine’s Memorial, Annex 1001); Council of the European Union, Directive
2000/43/EC (“Race Directive”) (29 June 2000), Article 2(2)(b) (Ukraine’s Memorial,
Annex 827); U.K. Equality Act of 2010, § 19, accessed at
https://www.legislation.gov.uk/ukpga/2010/15/section/19; U.S. Civil Rights Act of 1964,
Title VII, 42 U.S.C. §§ 2000e-2(k); Griggs v. Duke Power Co., 401 U.S. 424, 430-436
(1971) (U.S. Supreme Court), accessed at https://www.freedomforuminstitute.org/wpcontent/
uploads/2019/07/Griggs-v.-Duke-Power.pdf; Ontario Human Rights Commission
v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 53, para. 18 (Supreme Court of Canada),
accessed at https://www.canlii.org/en/ca/scc/doc/1985/1985canlii18/1985canlii18.html;
Nitisha v. Union of India [Writ Petition No. 1109/2020], 25 March 2021, paras. 49-71
(Indian Supreme Court), accessed at https://indiankanoon.org/doc/190567716/.
13 CERD Committee, Opinion Concerning Communication No. 37/2006 (A.W.R.A.P.
v. Denmark), decided 8 August 2007 (Ukraine’s Memorial, Annex 799).
14 Russia’s CERD Counter-Memorial, para. 93 & fn. 182.
15 A.W.R.A.P. v. Denmark, paras. 2.1-3.2.
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16 party's petitioner's "origin". petitioner's 17
community 18 16 17 18 Russia's 77
claim, but one based on purpose. The Committee declared the complaint inadmissible
because the speech was against Muslims on grounds of their religion, and religion is not
protected under the Convention.16 The Committee observed as follows:
The Committee notes the State party’s objection that the petitioner’s claims
fall outside the scope of the Convention, because the statements in question
are directed at persons of a particular religion or religious group, and not at
persons of a particular “race, colour, descent, or national or ethnic origin”. It
also takes note of the petitioner’s contention that the statements in question
were indeed aimed at persons of Muslim or Arab background. The Committee
observes, however, that the impugned statements specifically refer to the
Koran, to Islam and to Muslims in general, without any reference whatsoever
to any race, colour, descent, or national or ethnic origin. While the elements of
the case file do not allow the Committee to analyse and ascertain the intention
of the impugned statements, it remains that no specific national or ethnic
groups were directly targeted as such by these oral statements as reported and
printed. In fact, the Committee notes that the Muslims currently living in the
State party are of heterogeneous origin. They originate from at least 15
different countries, are of diverse national and ethnic origins, and consist of
non-citizens, and Danish citizens, including Danish converts.17
17. It can be seen from this paragraph, read in its entirety, that it is not authority
for the proposition that in all cases, the applicant must prove an intent to specifically and
directly target a particular community. Instead, the complaint was declared inadmissible
because the act in question was targeted at individuals on grounds of their religion, and
religious discrimination is clearly excluded from the CERD. On the other hand, as shown
above, the CERD Committee has consistently, in a series of Opinions directly on point, stated
expressly that the CERD does not require intent to be proved.
18. Russia asserts that Ukraine must establish a differentiation of treatment and an
unjustifiable disparate impact, citing GR 14 paragraph 2 as authority.18 However, as
demonstrated above, this is not the import of GR 14 or the paragraph in question. As
16 Ibid., paras. 6.2-7.
17 Ibid., para. 6.2.
18 Russia’s CERD Counter-Memorial, para. 97 & fn. 193.
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"origin."19
Russia's 20 Ukraine's 21 19 " Russia's 115-21 88
explained in the preceding section, it is clear that the CERD prohibits two different types of
discrimination, one based on purpose and the second on impact. So far as effect is
concerned, GR 14 states: “In seeking to determine whether an action has an effect contrary to
the Convention, [the CERD Committee] will look to see whether that action has an
unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national
or ethnic origin.”19
19. Russia’s assertion that Ukraine must prove both a differentiation in treatment
and a disparate impact therefore is not grounded in established law regarding effects-based
discrimination claims. Instead, for effects-based claims, Ukraine is required to show only the
existence of a practice or policy that has a disparate impact on, or disproportionately
disadvantages, a racial group.
III. The existence of an underlying political motivation to discriminate is irrelevant
when determining whether certain acts constitute racial discrimination under
the CERD.
20. In its Counter-Memorial, Russia incorrectly posits that a claim of
discrimination falls outside of the CERD when such discrimination was based on an
underlying political motivation.20 Specifically, Russia asserts that Ukraine’s claim that the
Crimean Tatar and Ukrainian communities in Crimea have been subjected to discrimination
because of their opposition to the annexation of that territory by Russia amounts to a claim of
political discrimination that falls outside the scope of the Convention.21 In this section, I will
demonstrate why that position has no basis in the CERD.
21. For conduct to qualify as racial discrimination that is prohibited by the CERD,
the conduct in question must satisfy the definition of racial discrimination set out in
19 CERD Committee, General Recommendation No. 14, para. 2.
20 Russia’s CERD Counter-Memorial, paras. 115–117.
21 Ibid., para. 115.
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group's
1)'defmition Russia's 22 Ukraine's 22 "citizens."
99
Article 1(1) of the Convention and not fall within any of the limited exclusions described in
Article 1(2), 1(3) and 1(4).
22. Starting with Article 1(1), that provision defines discrimination as a distinction
based on race that has the purpose or effect of nullifying or impairing a protected group’s
human rights. It follows from this that the existence of a distinction based on race
accompanied by a purpose or effect of nullifying or impairing human rights on a group-wide
basis is sufficient to constitute racial discrimination within the meaning of Article 1(1)’s
definition. Crucially, Article 1(1) contains no qualifying language capable of taking conduct
that satisfies these conditions outside the scope of the definition depending on the ultimate
motivation behind the distinction. Accordingly, if a distinction is introduced with the
purpose or effect of restricting the human rights of a protected group, it does not matter for
the purposes of the CERD definition whether the ultimate reason for introducing that
distinction was political, economic or cultural. Where actions are taken that constitute racial
discrimination under the CERD, the underlying motivation for that discrimination is
irrelevant as a matter of law.
23. Turning next to the exclusions found elsewhere in Article 1, it quickly
becomes apparent that none of these assist Russia’s argument. Article 1(2) relates to
distinctions between citizens and non-citizens.22 Ukraine’s claims fall outside this exclusion
because they allege distinctions between, on the one hand, two ethnic groups forming part of
the Crimean population (the Crimean Tatar and Ukrainian communities) and, on the other
hand, the other ethnic groups within the population (primarily the ethnic Russian
community). Although, as I understand, Ukraine alleges that Russia has forcibly changed the
22 CERD Article 1(2) provides in full: “This Convention shall not apply to
distinctions, exclusions, restrictions or preferences made by a State Party to this
Convention between citizens and non-citizens.”
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23 24 Ukraine's fmal "[."25 23 Ukraine's 24 "nationality."
25 "achieved."
1100
citizenship of persons residing in Crimea and subjected individuals to detriment based on
their citizenship decisions, with a disproportionate effect on ethnic Ukrainians and Crimean
Tatars, this is not the same as the differentiation between citizens and non-citizens which is
permitted by Art 1(2).23 This is borne out by Article 1(3), which, while allowing legal
provisions differentiating on grounds of nationality, citizenship and naturalisation, does not
permit discrimination against any particular nationality.
24. As just noted, Article 1(3) excludes distinctions arising from the operation of
legal provisions concerning nationality, citizenship and naturalisation, provided that, in the
service of this distinction, it is clear that such provisions do not discriminate against any
particular nationality.24 Again, while I understand that certain of Ukraine’s allegations relate
to the operation of nationality and citizenship provisions, the gravamen of those allegations is
that the provisions have been employed specifically with the purpose or effect of burdening
the human rights of the two protected groups at issue in this case, i.e., of discriminating
against particular ethnicities. Accordingly, Article 1(3) does not appear to apply in this case.
25. The final exclusion from the definition of racial discrimination is set out in
Article 1(4) and relates to “[s]pecial measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups . . . .”25 This exclusion clearly is not
23 See Ukraine’s Memorial, Part II, Chapter 9, Section D.
24 CERD Article 1(3) provides in full: “Nothing in this Convention may be interpreted
as affecting in any way the legal provisions of States Parties concerning nationality,
citizenship or naturalization, provided that such provisions do not discriminate against
any particular nationality.”
25 CERD Article 1(4) provides in full: “Special measures taken for the sole purpose of
securing adequate advancement of certain racial or ethnic groups or individuals requiring
such protection as may be necessary in order to ensure such groups or individuals equal
enjoyment or exercise of human rights and fundamental freedoms shall not be deemed
racial discrimination, provided, however, that such measures do not, as a consequence,
lead to the maintenance of separate rights for different racial groups and that they shall
not be continued after the objectives for which they were taken have been achieved.”
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Russia's — Stalin's — Ukraine's Crimea's — — government's "homelands" "Bantustans," 26 "Tatars" "Crimea") Ukraine's 1111
applicable in this case, where Ukraine alleges discrimination to the detriment, not the
advantage, of the Crimean Tatar and Ukrainian communities.
26. It follows from the foregoing analysis that there is no textual basis in the
CERD for Russia’s claim that discriminatory conduct falls outside the scope of the CERD if
that conduct is ultimately motivated by political considerations. This conclusion is hardly
surprising when considered in the light of some real-world practical examples.
27. Appropriately enough, the expulsion of the Crimean Tatar people from Crimea
in 1944, along with certain other ethnic groups inhabiting the peninsula, provides a good
illustration of the principle embodied in Article 1 of the CERD. The motivation for that
expulsion – Stalin’s false accusation that the Crimean Tatars had collaborated with the
Nazis26 – could be characterized as political, in much the same way that Russia has attempted
to portray Ukraine’s allegation in the present case that the Crimean Tatar and Ukrainian
communities have been targeted for racial discrimination on account of their opposition to
Crimea’s annexation. Yet, had the CERD been in force in 1944, it is clear that the expulsion
– a distinction based on race which had the purpose or effect of nullifying or impairing the
human rights of an entire people – would have qualified as racial discrimination prohibited by
the Convention.
28. A second factual example of politically-motivated racial discrimination is
provided by the South African government’s apartheid policy between 1948 and 1994.
Among many other discriminatory policies, as part of the policy of separate development,
Black people in South Africa were deprived of their South African citizenship and compelled
to become citizens of “homelands” or “Bantustans,” such as the Transkei and Ciskei. Here
26 See State Defense Committee of the Soviet Union Decree No. 589, “On the
Crimean Tatars” (11 May 1944) (ordering the Crimean Tatars “to be banished from the
territory of the Crimea”) (Ukraine’s Memorial, Annex 871).
- 210 -
27
28
ethnicity.' Ukraine's Russia's 28 Russia's 29 Court's 1122
the motive could be said to be political: to create a political system based on racial
hierarchies. But no-one would doubt that this amounted to racial discrimination against
South African Black people.27
29. In conclusion, the CERD does not preclude a finding of racial discrimination
merely because the respondent acted on the basis of an underlying political motivation.
IV. The concept of ethnicity in the CERD is dynamic and reflective of social
circumstances.
30. In my first expert report, I examined the meaning of ethnicity and concluded
that ethnic identity is a dynamic concept that is capable of evolution. I also concluded that
both objective and subjective criteria are relevant to determining whether a group shares an
ethnic identity, and that the specific criteria that may be considered in this analysis include
language, religion, culture, social identity, and political identity. In its Counter-Memorial,
Russia disputes these conclusions, contending that ethnicity is static and immutable, and
cannot encompass shared beliefs regarding political and social circumstances.28
31. Below, in Section A, I further examine the meaning of ethnicity, building on
the analysis in my previous report, to show that ethnicity can evolve over time. In Section B,
I analyse how shared beliefs and outlooks regarding membership in a political community,
including the belief in a present or future national identity, can be a relevant aspect of
29
27 As with Ukraine’s allegations concerning the operation of Russia’s nationality and
citizenship laws, these measures would not have been excluded from the scope of the
Convention pursuant to Article 1(3) because they clearly discriminated against whole
peoples based on their race or ethnicity.
28 Russia’s CERD Counter-Memorial, paras. 120-121.
29 The Court’s recent decision in Qatar v. UAE, which addressed issues of nationality
rather than ethnicity, does not affect the analysis of ethnicity contained in my first report
and expanded upon below. I understand that Ukraine will address Qatar v. UAE in more
detail in its Reply.
- 211 -
"`discrimination' life." "ethnic" "ethnic" ("8")
"[concerned."3° 31
Ukraine's 31 Ukraine's 1133
A. Ethnicity is a concept capable of evolution and change.
32. Article 1(1) of the CERD states that “the term ‘racial discrimination’ shall
mean any distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public life.” No
further definition of “ethnic” is given.
33. Although the meaning of “ethnic” has not been elaborated by the CERD
Committee, the guiding principle has always been that of self-identification, which is
necessarily subject to evolution and change. In its General Recommendation 8 (“GR 8”)
concerning the interpretation of Article 1, the CERD Committee has opined that, “[h]aving
considered reports from States parties concerning information about the ways in which
individuals are identified as being members of a particular racial or ethnic group or groups, [it
is] of the opinion that such identification shall, if no justification exists to the contrary, be
based upon self-identification by the individual concerned.”30 The CERD Committee has
also suggested that a group may be identified by the dominant population in a country as
ethnically different, even if it does not regard itself as such.31
34. Moreover, as my first report demonstrated, the concept of ethnicity as
evolving rather than static has been expressly recognized in international criminal law, which,
like Article 7 of the CERD, includes a concept of ethnical groups. Even though international
30 CERD Committee, General Recommendation No. 8 (1990) (Ukraine’s Memorial,
Annex 791).
31 R. Wolfrum, The Committee on the Elimination of Racial Discrimination, 3 Max
Planck Yearbook of United Nations Law 489, 498 (1999) (Ukraine’s Memorial, Annex
1012).
- 212 -
32 "ethnic" "ethnical" ("ICC") "rights,"33 ("Convention") "such."35 36 ("ICTY");37and 32 ("ICTY"),
33 ("Statute"), Ukraine's 34 35 36 ICC's 37 1144
criminal law has a different purpose than international human rights law,32 and therefore the
concept of “ethnic” and “ethnical” is not identical in both systems, the Rome Statute of the
International Criminal Court (“ICC”) expressly states that its terms must be interpreted
“consistent with internationally recognized human rights,”33 and the notion that human rights
jurisprudence is persuasive and relevant in the international criminal law context is generally
accepted. International criminal law is therefore a relevant source for defining ethnicity in
international human rights law, including the CERD.
35. The Convention on the Prevention and Punishment of the Crime of Genocide
of 194834 (“Genocide Convention”) provides that genocide encompasses certain “acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such.”35 The same definition is found in a variety of international criminal law
statutes, including the Rome Statute;36 the Statute of the International Criminal Tribunal for
the Former Yugoslavia (“ICTY”);37 and the Statute of the International Criminal Tribunal for
32 See, e.g., International Criminal Tribunal for the Former Yugoslavia (“ICTY”),
Prosecutor v. Kunarac et al., Case No. IT-96-23/1-A, Appeals Chamber Judgment (12
June 2002), paras. 147-148.
33 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (17
July 1998) (“Rome Statute”), Article 21(3) (Ukraine’s Memorial, Annex 749).
34 UN Convention on the Prevention and Punishment of the Crime of Genocide, 78
U.N.T.S. 277 (1948). Both Russia and Ukraine are parties to the Genocide Convention.
35 Ibid., Article II.
36 Rome Statute, Article 6. Russia has signed but not ratified the Rome Statute, and
accordingly is obligated to refrain from acts which would defeat the object and purpose of
that treaty under Article 18 of the Vienna Convention on the Law of Treaties. Ukraine
has not signed the Rome Statute, but Ukraine has lodged two declarations under Article
12(3) of the Rome Statute accepting the ICC’s jurisdiction over alleged crimes committed
on its territory from 21 November 2013 to 22 February 2014, and from 20 February
onward. See International Criminal Court, Preliminary Examination: Ukraine, accessed
at https://www.icc-cpi.int/ukraine.
37 Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc.
S/25704 (1993), Article 4.
- 213 -
("ICTR").38 case."
Ukraine's 4° "context," "definitions" concepts.41 While
42 38 Ukraine's 39 ("[context.") Ukraine's
4° Russia's Ukraine's
41 42 ("preparatoires 1155
Rwanda (“ICTR”).38 The Genocide Convention and the other statutes mentioned above do
not include a definition of any of these groups. Nevertheless, tribunals interpreting these
provisions have acknowledged that ethnicity is shaped by the specific political, social and
cultural context involved in a particular case.39
36. Though Russia contests the interpretation of ICTR case law set forth in
Ukraine’s Memorial and in my earlier report, Russia cites the very same quote that was used
in footnote 15 of that report, from Prosecutor v. Jean-Paul Akayesu.40 However, Russia
ignores the argument made in subsequent paragraphs of that report: that although the
Genocide Convention originally conceived of ethnicity as fixed and stable, this conception
has necessarily evolved to reflect the realities of the conflicts addressed by the relevant
tribunals. This evolution is demonstrated in the cases of Rutaganda (ICTR) and Tolimir
(ICTY).
37. The ICTR, in the Rutaganda case, concluded that the existence of such groups
must be “assessed in the light of a particular political, social and cultural context,” as “there
are no generally and internationally accepted precise definitions” of these concepts.41 While
the Chamber stated that a certain degree of stability is necessary,42 the question of whether a
38 Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955,
Annex (1994), Article 2(2) (Ukraine’s Memorial, Annex 747).
39 See ICTR, Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment (6
December 1999), para. 56 (“[T]he concepts of national, ethnical, racial and religious
groups have been researched extensively and . . . at present, there are no generally and
internationally accepted precise definitions thereof. Each of these concepts must be
assessed in the light of a particular political, social and cultural context.”) (Ukraine’s
Memorial, Annex 990).
40 Russia’s CERD Counter-Memorial, para. 121 & fn. 257 (citing ICTR, Prosecutor v.
Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment (2 September 1998) (Ukraine’s
Memorial, Annex 988)).
41 Prosecutor v. Rutaganda, para. 56.
42 Ibid., para. 57 (“It appears, from a reading of the travaux préparatoires of the
Genocide Convention, that certain groups, such as political and economic groups, have
- 214 -
"context."43 44
45 group.'
47 `groups' commitment.").
43 44 ("criteria.") Ukraine's Ukraine's 45 46 47 ("Commission"), Ukraine's 1166
specific group is protected should be determined “on a case-by-case basis, taking into account
both the relevant evidence proffered and the political and cultural context.”43 The ICTY
subsequently endorsed this case-by-case approach in the Tolimir case.44
38. The facts at issue in these particular cases further demonstrate the evolving
and changing nature of ethnicity. In Rutaganda, the ICTR concluded that although the Tutsi
population did not have its own language or a distinct culture from the rest of the Rwandan
population, the identification of persons belonging to the groups of Hutu or Tutsi or Twa had
become embedded in Rwandan culture, and by 1994, the Tutsis could be regarded as an
ethnic group.45 In the earlier case of Akayesu, the ICTR Trial Chamber emphasized that the
Hutus and Tutsis had been made distinct by the Belgian colonizers, and the distinction was
confirmed by the self-perception of the members of each group.46
39. Darfur provides a further demonstration of the evolving nature of ethnicity.
The Darfur Commission noted that the various tribes who had been victims of attacks did not
appear to constitute ethnic groups distinct from the groups who were attacking them.47 They
spoke the same language (Arabic), shared the same religion (Islam), and due to interbeen
excluded from the protected groups, because they are considered to be ‘mobile
groups’ which one joins through individual, political commitment.”).
43 Ibid., para. 58.
44 ICTY, Prosecutor v. Tolimir, Case No. IT-O5-88/2-T, Trial Chamber II Judgment
(12 December 2012), para. 735 (“While the criteria for identifying the group are not
specified in the Genocide Convention, the jurisprudence of the Tribunal states that the
determination of the group is to be made on a case-by-case basis, using both objective and
subjective criteria.”) (Ukraine’s Memorial, Annex 1004). This was upheld on appeal.
ICTY, Prosecutor v Tolimir, Case No. IT-O5-88/2-A, Appeals Chamber Judgment (8
April 2015), para. 185 (Ukraine’s Memorial, Annex 1005).
45 Prosecutor v. Rutaganda, para. 374.
46 Prosecutor v. Akayesu, para. 702.
47 Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary-General Pursuant to UNSC Resolution 1564 (25 January 2005) (“Darfur
Commission”), para. 508 (Ukraine’s Memorial, Annex 753).
- 215 -
48 "`African' `Arabs.'"49 "African" "Arab."5°
"erroneous" "ground)," "factor."51 "opposition,"52 "groups."53 "expansion" 48 49 5° 51 52 53 1177
marriage, could not be distinguished in their outward physical appearance.48 Nevertheless,
using the criteria of whether they perceived themselves and each other as constituting distinct
groups, the Commission found that over the years, the perception of differences had
heightened. Most saliently, it found that “the political polarization around the rebel
opposition to the central authorities has extended itself to issues of identity. Those tribes in
Darfur who support rebels have increasingly come to be identified as ‘African’ and those
supporting the government as ‘Arabs.’”49 This, together with other issues such as conflict
over access to grazing lands and an insistence in the media on such a divide, gradually
created a clear polarization in the self-perception of the groups concerned and the perception
of other groups as locating their identity as either “African” or “Arab.”50
40. Taking these aspects of identity in Darfur into account, the Darfur
Commission found that it would be “erroneous” to overlook “the process of formation of a
perception and self-perception of another group as distinct (on ethnic, or national, or religious
or racial ground),” which the Commission found to be the “crucial factor.”51 The Darfur
Commission therefore concluded that the differentiation of groups “gradually hardens and
crystallizes into a real and factual opposition,”52 such that those groups “are no longer
identified only by their objective connotations but also on the basis of the subjective
perceptions of members of groups.”53 This “interpretation and expansion” of the concept of
48 Ibid.
49 Ibid., para. 510.
50 Ibid.
51 Ibid., para. 500.
52 Ibid.
53 Ibid., para. 501.
- 216 -
"law," 54
("ECtHR"), 55 "backgrounds."56
57 group's "ethnic" 54 56 57 Russia's 1188
ethnicity, which “has become part and parcel of international customary law,” clearly
envisions that ethnicity is a dynamic concept capable of evolution.54
41. Similarly, the European Court of Human Rights (“ECtHR”), in Timishev v.
Russia,55 stated as follows: “Ethnicity and race are related and overlapping concepts.
Whereas the notion of race is rooted in the idea of the biological classification of human
beings into subspecies according to morphological features such as skin colour or facial
characteristics, ethnicity has its origin in the idea of societal groups marked by common
nationality, tribal affiliation, religious faith, shared language, or cultural and traditional
origins and backgrounds.”56
42. Russia acknowledges that ethnicity can refer to shared cultural characteristics
and a way of life.57 No-one could suggest that culture and a way of life are frozen at birth,
particularly given the intrinsically group nature of cultural characteristics. While a person
might be born into an ethnic group, the content of the group’s ethnicity can change and
evolve over time.
43. Therefore, as discussed in my first expert report, the term “ethnic” in the
CERD should be interpreted consistently with other international law instruments and
decisions construing ethnicity as not fixed and permanent, but rather as fluid and capable of
change.
54 Ibid.
55Timishev v. Russia, ECtHR App. Nos. 55762/00 & 55974/00, Judgment (13
December 2005).
56 Ibid., para. 55.
57 Russia’s CERD Counter-Memorial, para. 120.
- 217 -
Russia's 58 group's "Africans" "Arabs."59 58 59 1199
B. Shared beliefs and outlooks regarding membership in a political community
can be a relevant aspect of ethnicity.
44. As noted above, my first report explained that the criteria that may be
considered in determining whether a group shares an ethnic identity include language,
religion, culture, social identity, and political identity. However, Russia’s Counter-Memorial
denies that shared beliefs and outlooks regarding political and social circumstances can be a
relevant aspect of ethnicity.
45. As an initial matter, Russia mischaracterizes the conclusions of my first
report.58 In that report, I concluded that a common sentiment, such as the belief in a future
national identity, can create a group identity which binds a group in a way which is analogous
to culture or social identity, and that, in this way, ethnic groups can evolve. I also concluded
that the shared culture and heritage of an ethnic group can include, particularly in the context
of this case, stances regarding issues that some may deem to be political in nature, including
sentiments against Russian annexation.
46. Shared beliefs and outlooks — including the belief in a present or future
national identity — can form part of an ethnic group’s identity. Further, although a person
may inherit an ethnic origin at birth, the meaning and content of that ethnic identity can
evolve over time, in response to particular circumstances. For example, as was described
above with respect to the Darfur Commission, one of the most salient aspects of the evolving
identity of groups in Darfur was the way in which the political polarization in relation to
opposition to the central authorities extended to issues of identity, with tribes supporting
rebels identified as “Africans” and those supporting the government as “Arabs.”59 These
58 Ibid., para. 119.
59 Darfur Commission, para. 510.
- 218 -
Ukrainians'
"political," "political," "social," * * *
group's "2200
shared beliefs regarding the proper governing authorities was key to the finding of the
Commission that these groups could now be considered to be distinct ethnic groups.
47. I understand that Ukraine argues that one component of ethnic Ukrainians’
shared identification as Ukrainians is a desire to live within a common Ukrainian state.
While this belief might be labelled by some as “political,” that is merely due to the specific
circumstances in which the Ukrainian community in Crimea found itself from February 2014
onwards, following the occupation and then the annexation of the peninsula by Russia. This
common belief has been on even greater public display every day since 24 February 2022,
when Russia launched its most recent invasion of Ukraine, as Ukrainians fight for the
continued existence of their state and of their own ethnic identity. Regardless of its label as
“political,” “social,” or otherwise, this shared attachment to Ukrainian statehood forms a part
of the common identity of ethnic Ukrainians in Crimea. Pursuant to international law
concepts of ethnicity, this belief, particularly in the context of Crimea, is thus a relevant
aspect of defining the ethnic Ukrainian community.
48. In conclusion, ethnicity is an evolving concept, which is not fixed at birth, but
rather can develop and adapt in response to significant disruptions in social and political
conditions. Self-identification is a recognized and important aspect of ethnic identity, which
must be assessed against the background of an ethnic group’s unique political and social
circumstances. Shared beliefs regarding social and political matters, including the belief in a
present or future national identity and affinity with a political community, can be a salient
aspect of ethnic identity.
V. Removal of pre-existing provision for minority language education can violate
CERD Article 5 as it relates to the right to education.
49. Russia claims that the “CERD does not provide for a right to education in the
native language of national minorities and that therefore, Ukraine cannot, as a matter of
- 219 -
`education' Crimea."60
"training."61 60 Russia's 61 "groups." Ukraine's Russia's 2211
jurisdiction and applicable law, claim that Russia has violated ‘minority rights in relation to
education’ under CERD in respect of Crimean Tatars and ethnic Ukrainians in Crimea.”60
Whether or not there is an independent right to education in a minority language, however,
the CERD was violated since the existing provision of minority language education to
Crimean Tatars and Ukrainians was removed in a discriminatory fashion.
50. Article 5(e)(v) of the CERD “guarantee[s] the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality before the law, notably
in the enjoyment of . . . [t]he right to education and training.”61 This provision protects
individuals from both purpose discrimination and effect discrimination in the enjoyment of
their right to education. As demonstrated above, equal treatment can lead to a disparate
impact, which is a breach of the right to equality in effect. Equal access of all children to
Russian-speaking education has an unjustified disparate impact on Ukrainian and Crimean
Tatar children as compared to children whose first language is Russian in circumstances
where it replaces pre-existing provision for each to be taught in their native languages. This
in itself constitutes a breach of the right to enjoy the right to education without distinction as
to ethnic origin protected by Article 5 of the CERD.
51. Russia claims that there is no right to instruction in a minority language.
However, it is well established that regardless of whether there is a right to such instruction, a
60 Russia’s CERD Counter-Memorial, para. 253.
61 The other relevant provision of the CERD, Article 7, requires States Parties to enact
measures “in the fields of teaching, education, culture and information, with a view to
combating prejudices which lead to racial discrimination and to promoting understanding,
tolerance and friendship among nations and racial or ethnical groups.” This provision
ensures that States Parties encourage education systems and individual classrooms to
foster a sense of community and work to root out biases and prejudices amongst ethnic
groups. As I understand Ukraine’s allegations, Russia’s teaching of history from a
specifically Russian perspective, and its removal of Ukrainian and Crimean Tatar
literature and Ukrainian and Crimean Tatar culture from the curriculum, constitutes a
breach of Article 7.
- 220 -
State's 62 63 62 ("law."). Opinion's Kosovo's 297 (OUP, M. Milanovie & M. Wood, eds. 2015) (Ukraine's Reply, Annex 123). It is
63 AB — 2222
State will be acting in a discriminatory manner if it removes existing provision of such
instruction from some ethnic groups and not from others. I understand that since March
2014, Russia has introduced a number of measures in Crimea that significantly inhibit the
education and training of Ukrainians and Crimean Tatars. At the same time, it has given
greater emphasis to Russian as the dominant language of tuition and reoriented the
curriculum towards Russia. Ukraine also alleges that Russia has significantly decreased the
number of schools in Crimea that currently serve the Ukrainian population, with the number
of students receiving general education in the Ukrainian language plummeting. Crimean
Tatar schools are being starved of resources, such as textbooks. In addition, I understand that
Russia ended a number of teacher-training programmes that had graduated Ukrainianlanguage
and Crimean Tatar-language teachers. Instead, it ordered Ukrainian language and
literature teachers to be retrained to teach Russian. According to Ukraine, therefore, Russian
speaking children have not had their access to Russian education removed, while the ability
of Crimean Tatar and ethnic Ukrainian children to receive an education in their languages has
been significantly restricted. In my opinion, these alleged facts are capable of violating a
State’s duty under Article 5(e)(v) of the CERD to guarantee the enjoyment of the right to
education and training without distinction as to ethnic origin.
52. It is relevant for the Court to consider, in this context,62 the Advisory Opinion
of the Permanent Court of Justice in the Minority Schools in Albania case.63 In that case,
62 Statute of the International Court of Justice, Article 38(1)(d) (“The Court . . . shall
apply. . . judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law.”). For the
status of Advisory Opinions, see A. Peters, Has the Advisory Opinion’s Finding that
Kosovo’s Declaration of Independence was not Contrary to International Law Set an
Unfortunate Precedent?, in The Law and Politics of the Kosovo Advisory Opinion 295-
              
generally accepted that, where relevant, this applies too to Advisory Opinions of the PCIJ.
63 Minority Schools in Albania, Advisory Opinion, 6 April 1935, P.C.I.J. Rep. Series
A/B – No. 64.
- 221 -
fi4 65 66
"nationals."67 "fact."68 "[defmition 64 65 66 67 /bid., 68 2233
private schools in Albania were closed, including private schools of the minority population,
such as those using the Greek language. These minority-language schools had previously
been permitted by the Albanian government.64 Like Russia in the current case, the Albanian
government submitted that all children were treated equally under this new measure since it
was of general applicability, ending all private schools for students learning in the majority
language, as well as the minority.65 The Court recognized, however, that this impacted
minority communities far more heavily, as the majority would continue to have their needs
supplied by public institutions created by the State, whereas in effect the minority groups
were deprived of institutions which were indispensable to their special requirements.66
53. The Declaration at issue in the Minority Schools of Albania case stated:
“Albanian nationals who belong to racial, religious or linguistic minorities will enjoy the
same treatment and security in law and in fact as other Albanian nationals.”67 The Permanent
Court of Justice recognized that equality in law is not the same as equality in fact, holding: “It
is easy to imagine cases in which equality of treatment of the majority and of the minority,
whose situation and requirements are different, would result in inequality in fact.”68 The
reference to inequality in fact is analogous to the reference in the CERD to the disparate
effect of apparently equal treatment. As the CERD Committee stated in its opinion in L.R. v.
Slovakia: “[T]he definition of racial discrimination in article 1 expressly extends beyond
measures which are explicitly discriminatory, to encompass measures which are not
64 Ibid., para. 21.
65 Ibid., para. 1.
66 Ibid., para. 67.
67 Ibid., para. 1.
68 Ibid., para. 65.
- 222 -
fact discrimination."69
"right" "nationals."7° 71 69 7° 71 Sejdie v. Bosnia & Herzegovina, 2244
discriminatory at face value but are discriminatory in fact and effect, that is, if they amount to
indirect discrimination.”69
54. In addition, the Court in Minority Schools in Albania stated that the “equal
right” to education means that the right “conferred on members of the minority cannot in any
case be inferior to the corresponding right of other Albanian nationals.”70 This demonstrates
that in appropriate circumstances, the right to equal enjoyment of education without
distinction based on ethnic origin in Article 5 of the CERD requires the provision of
education in the language of a minority ethnic group where education is provided to the
majority ethnic group in the majority language. At the very least, this requires that the
existing provision of minority language education should not be removed in a discriminatory
fashion. Since the majority population has not had the access to education in their own
language restricted, but the minority ethnic population had access to quality education in their
own language severely restricted, there is discrimination in effect on grounds of ethnic origin
in the enjoyment of the right to education, in breach of the CERD.
55. The principle that the discriminatory removal of existing entitlements can be a
breach of the right to non-discrimination regardless of whether the entitlement is itself
protected under the human rights instrument can also be found in other international and
regional human rights documents. It is well established under the European Convention on
Human Rights that the prohibition of discrimination extends to rights, falling within the
general scope of any article of the Convention, which the State has decided voluntarily to
provide.71 Thus in Stec v. United Kingdom, the ECtHR held that there was no right to social
69 CERD Committee, Opinion Concerning Communication No. 31/2003 (L.R. v.
Slovakia), decided 7 March 2005, para. 10.4 (emphasis added).
70 Minority Schools in Albania, para. 70.
71 Stec v. United Kingdom, ECtHR App. Nos. 65731/01 & 65900/01, Grand Chamber
Decision (6 July 2005), para. 39; E.B. v. France, ECtHR App. No. 43546/02, Judgment
(22 January 2008), para. 48;      ECtHR App. Nos.
- 223 -
73
"[14."74 75 76
* * *
Relating Belgium' ("Case"), 72 73 74 75 76 2255
security within the Convention. However, if a State does decide to create a benefits scheme,
it must do so in a manner which does not contravene the right not to be discriminated against
in ECHR Article 14.72 In E.B. v. France, the ECtHR reiterated that there was no right to
adoption under the Convention. However, where a State has gone beyond its obligations in
creating such a right, it cannot take discriminatory measures in the application of that right.73
56. Most saliently, in the Belgian Linguistics case, the ECtHR stated: “[P]ersons
subject to the jurisdiction of a Contracting State cannot draw from Article 2 of the Protocol
(P1-2) the right to obtain from the public authorities the creation of a particular kind of
educational establishment; nevertheless, a State which had set up such an establishment could
not, in laying down entrance requirements, take discriminatory measures within the meaning
of Article 14.”74 In that case, although the Court held that there was no duty under the
Convention to provide instruction in a particular language, there was nevertheless
discrimination in that Dutch-speaking children resident in the French unilingual region
enjoyed access to Dutch-language schools in the six communes. By contrast, Frenchspeaking
children living in the Dutch unilingual region were refused access to Frenchlanguage
schools in those communes.75 The Court held that the enjoyment of the right to
education was not secured to everyone without discrimination.76
27996/06 & 34836/06, Judgment (22 December 2009), para. 39; Case ‘Relating to
Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ v.
Belgium (“Belgian Linguistics Case”), ECtHR App. Nos. 1474/62 et al., Judgment (23
July 1968), pp. 30-31, 33-34.
72 Stec v. United Kingdom, para. 53.
73 E.B. v. France, para. 49.
74 Belgian Linguistics Case, p. 30.
75 Ibid., pp. 65-67.
76 Ibid.
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2266
57. In my opinion, Russia violated Article 5(e)(v) of the CERD based not on a supposed
right to an education in the minority language, but based on the removal of existing minority
language education in a discriminatory manner. The Court in Minority Schools in Albania
emphasized that the disparate effect of apparently equal treatment can actually result in
inequality in fact, amounting to discrimination.
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Signed in [C' on 9— I ris q's, 1 ).-0
Sandra Fredman
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Annex 6
Second Expert Report of Paul R. Magocsi (14 April 2022)
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- 228 -
INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE
SUPPRESSION OF THE FINANCING OF TERRORISM AND OF THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF
RACIAL DISCRIMINATION
between
UKRAINE
and
THE RUSSIAN FEDERATION
SECOND EXPERT REPORT OF PROFESSOR PAUL ROBERT MAGOCSI
- 229 -
Ukraine's counsel's Russia's Russia's
"opinion" Russia's Russia's 11
I. Introduction
1. I submitted an initial expert report in these proceedings on 4 June 2018,
accompanying Ukraine’s Memorial. In that report, I provided historical context for the existence
of distinct Crimean Tatar and Ukrainian communities among the population of Crimea. Counsel
for Ukraine have asked me to prepare this second report to provide the Court with additional
historical context on the relationship between Ukrainian statehood and the current manner in
which the inhabitants of Ukraine, including Crimea, self-identify as Ukrainians.
2. At counsel’s request, I have reviewed the relevant parts of Russia’s Counter-
Memorial and supporting materials addressing the nature of self-identity among the Ukrainian
and Crimean Tatar communities in Crimea. I understand from that review that Russia contests
the role that identification with, and a desire to live within the boundaries of, the Ukrainian state
plays in defining inhabitants of Crimea as members of the Ukrainian community. Russia’s
Memorial misleadingly labels this element of self-identification as “political opinion” concerning
the desirability of Russia’s annexation of Crimea. In this report, I offer a fuller description of the
development of aspirations for a specifically Ukrainian state since the mid-seventeenth century,
and the subsequent manifestations of such a state, as well as the relationship between the notion
of Ukrainian statehood and the nature of Ukrainian identity up to the present day.
3. It is a sad irony that this assignment coincides with a full-scale Russian invasion
of Ukraine launched on the back of pronouncements by Russia’s president denying the historical
right of the Ukrainian people to a state of their own, and even denying that the Ukrainian people
are ethnically distinct from their Russian neighbors. It may be thought that the brave and
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Russia's 22
effective resistance of virtually the entire Ukrainian population to Russia’s military invasion
provides sufficient demonstration that a core component of Ukrainian self-identity is a staunch
desire to live peacefully within the borders of the Ukrainian state, free from interference from an
overbearing and aggressive neighbor. Nonetheless, this report will show that the attachment of
Ukrainians to statehood did not materialize out of a vacuum in February 2022, or earlier in
February 2014, when Russia commenced its occupation of Crimea. Rather it is in fact the
product of an organic development spanning nearly four centuries.
4. In August 1991 Ukraine declared its independence, and before the end of that
year, following the dissolution of the Soviet Union, it began functioning as a fully sovereign
state within the international community. Independent statehood was not, however, something
new. In fact, during the twentieth century alone, independence was proclaimed for all or part of
Ukrainian territory no less than five times before 1991. Nor was the idea of statehood in Ukraine
limited to the twentieth century. Three centuries earlier Ukrainians created a state which existed
in some form from the mid-seventeenth to late eighteenth centuries.
5. This report will review the heritage of statehood in Ukraine and the various forms
that it has taken both before and after the most recent declaration of independence on 24 August
1991. It will also discuss how the inhabitants of the country define themselves and their
relationship to the state of Ukraine in terms of an ethnic or a civic nationality.
6. Section II of this report traces the historical basis for the idea of Ukrainian
statehood up to the end of the twentieth century, and Section III discusses the flourishing of
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people's defming 33
Ukrainian identity and statehood since Ukrainian independence in 1991. Finally, Section IV
offers a few concluding remarks.
II. Historical Basis for the Idea of Ukrainian Statehood
7. Long before the emergence of the modern Ukrainian state with the collapse of the
Soviet Union in 1991, there was a Ukrainian national movement, made up largely of
intellectuals, that helped to spread the idea that Ukrainians were a distinct people or ethnic
group. This section traces the role played in that movement by the idea of Ukrainian statehood
and how the emergence of a Ukrainian political unit in various guises following the First World
War has interacted with the evolving Ukrainian self-identity over the last century.
A. The Nineteenth Century
8. Like the proponents of many other national movements in Europe, Ukrainian
intellectuals were inspired by two phenomena: the French Revolution with its emphasis on the
people as the source of political legitimacy; and the views of the Enlightenment German
philosopher Johann Gottfried Herder, who argued that all peoples throughout the world,
regardless of their political status, are carriers of a unique culture, and that every culture (best
represented by a people’s native language) has its own particular worth and value.
9. During the first phase of the national movement, Ukrainian activists (Mykola
Kostamarov, Panteleimon Kulish, and Taras Shevchenko, among others) were concerned
primarily with cultural activity: describing the ethnographic characteristics and defining the
geographical extent of the Ukrainian people, and codifying a written form of their language.
During the second phase, a new generation of activists (Mykhailo Drahomanov, Ivan Franko,
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Rus', Rus' Rus', Ukraine's "East" "West." 44
and Mykhailo Hrushevskyi) looked to the historical past to justify the existence of a distinct
Ukrainian people and its right for cultural and political autonomy.
10. It was in this context that great emphasis was put on earlier examples of statehood
on Ukrainian lands. The medieval entity known as Rus’, which functioned as a loosely-knit
conglomerate of principalities from the ninth to fourteenth centuries, was the first example to be
mentioned. This was inevitable, considering the fact that the political, socioeconomic, and
cultural center of Rus’ was the city of Kyiv in the very heart of Ukraine. Kyivan Rus’, however,
extended beyond present-day Ukraine and included all of Belarus and much of European Russia.
11. In terms of territory, a much more specifically Ukrainian state was the Army of
Zaporozhia, or Hetmanate, created in 1649 under the Zaporozhian Cossack leader Bohdan
Khmelnytskyi, among whose most illustrious successors at the turn of the eighteenth century was
Ivan Mazepa. The Hetmanate (also called Little Russia) functioned as a largely self-governing
entity in central Ukraine for well over a century until it was abolished in the 1780s by the
Russian imperial authorities under Catherine II. Despite the demise of the Cossack Hetmanate,
its existence inspired the work of an ever growing number of the nineteenth-century Ukrainian
belletrists, artists, historians, and civic activists, and it provided them with a concrete example of
a self-governing political entity that might be restored in one form or another in the future.
12. When the ideology of nationalism reached Ukraine’s intellectuals during the first
decades of the nineteenth century, Ukrainian lands were divided between the Russian Empire in
the “East” and the Austrian (later Austro-Hungarian) Empire in the “West.” The attitude of those
two states toward Ukrainian aspirations differed greatly, especially during the second half of the
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"western" "eastern" 1
Ukrana/Independent 1 55
century. The rulers of Habsburg Austria tolerated and even encouraged the national movement
among Ukrainians (officially called Ruthenians at the time) based in the “western” city of Lviv,
while the tsarist Russian authorities aggressively attempted to suppress the Ukrainian national
movement among Ukrainians (officially called Little Russians) based in the “eastern” city of
Kyiv.1
13. Nonetheless, by the 1890s, specifically Ukrainian political parties functioned in
both the Russian and Austro-Hungarian Empires. This was also a time when certain leaders—
Iuliian Bachynskyi (Ukraina irredenta, 1895) and Mykola Mikhnovskyi (Samoostiina
Ukraïna/Independent Ukraine, 1900)—put forward the idea of an independent state which would
include Ukrainian-inhabited lands from both empires. Less than two decades later, seemingly
far-fetched ideas became reality.
B. The Twentieth-Century Revolutionary Era
14. From the very beginning of the revolutionary era that began with the collapse of
the tsarist Russian Empire and ended with the establishment of Soviet rule (1917-1921),
Ukrainians set out to achieve self-rule and eventually independent statehood. Already in March
1917 a body called the Ukrainian Central Rada (council) was established in Kyiv. It comprised
between 800 to 900 elected delegates who represented a broad spectrum of Ukrainian society:
rural dwellers, factory workers, soldiers, and civic associations. Before the year ended the
1 See Paul Robert Magocsi, History of Ukraine: The Land and Its Peoples, 2nd revised and
expanded ed. (Toronto, Buffalo, and London: University of Toronto Press, 2010), p. 407 (Annex
118).
- 234 -
People's/"People."2
"People." "land"—"Ukraine."3 "autonomy."4
Rada's republic's Rada's People's People's/2 "1918," 3 "1917," 4 "Universal," 66
Central Rada called into being the Ukrainian People’s/National Republic, which in January 1918
became an “independent, subject to no one, Free, Sovereign State of the Ukrainian People.”2
15. From the very beginning the Central Rada defined the concept “Ukrainian
People.” It meant the “entire population of our land”—ethnic Ukrainians and “other peoples [of]
Ukraine.”3 Moreover, all peoples had the “right of national-personal autonomy.”4
16. In actual practice, thirty percent of the Central Rada’s members were reserved for
the republic’s numerically largest peoples: ethnic Russians, Poles, and Jews. Each of the peoples
had government ministers representing their interests in the Central Rada’s General Secretariat
for Nationality Affairs, and a special Ministry of Jewish Affairs was created to oversee
autonomy for Jewish communities. Symbolic of the multinational nature of the Ukrainian
People’s Republic was its paper currency on which languages other than Ukrainian appeared:
Russian, Polish, and Yiddish.
17. The Ukrainian People’s/National Republic was able to rally a national army to
defend the territory it claimed: Ukrainian-inhabited lands in the former Russian Empire.
Independent Ukraine was recognized by the Central Powers through the Treaty of Brest Litovsk
2 “Fourth Universal of the Ukrainian Central Rada, 9 January 1918,” in Taras Hunczak, ed., The
Ukraine, 1917-1921: A Study in Revolution (Cambridge, Mass.: Harvard University Press, 1977),
p. 392 (Annex 109).
3 “Second Universal of the Ukrainian Central Rada, 3 July 1917,” in ibid., p. 386.
4 “Fourth Universal,” in ibid., p. 394.
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Skoropadskyi's fmally 77
(February 1918), and Germany and Austria-Hungary accepted an invitation from Ukraine to send
troops to protect it from Soviet Russia.
18. When the Central Powers became displeased with what they considered the
ineffectiveness of the Central Rada, they helped to install in Kyiv a pro-German leader, Hetman
Pavlo Skoropadskyi, to head what was formally called the Ukrainian State. Skoropadskyi’s very
title recalled the long tradition of Ukrainian statehood dating back to the Cossack Hetmanate in
the seventeenth and eighteenth centuries.
19. After Germany surrendered to the Allies in November 1918, their Hetmanate
client state collapsed. Nevertheless, Ukrainian statehood survived with the immediate restoration
of the Ukrainian National Republic, this time under the leadership of an executive body, the
Directory, headed by Symon Petliura. In the context of civil war, peasant uprisings, and foreign
invasions that characterized Ukraine in 1919-1920, the Directory-led Ukrainian National
Republic managed to survive, although with great difficulty, until its forces were finally driven
from Ukraine in November 1920.
20. Despite the turbulent environment in the post-tsarist Russian Empire, a Ukrainian
state, whether in the form of a national republic or hetmanate, managed to survive in some form
during the revolutionary era, 1917-1920. Evidence of its existence was confirmed on the
international stage. Ukraine was recognized de jure or de facto by 25 countries, and as an
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5
"legal" 6
Peoples' Peoples' "Ukrainian" 5 "State," 6 88
independent state it was accepted into several international organizations (maritime navigation,
postal, telegraph, and radio union).5
21. Very much aware of the reality and strength of the Ukrainian national movement
and the importance of Ukrainian statehood as a unifying force for people who identified as
Ukrainian, the Bolsheviks responded by creating in December 1917 a rival entity, the Ukrainian
Republic of Councils, based in Kharkiv. The alleged need to protect the Republic of Councils
and its successor, the Soviet Ukrainian Republic, later provided the “legal” justification for
Bolshevik Russia to send its Red Army into Ukraine in order to drive out the forces of its rival,
the Ukrainian National Republic.6
22. Meanwhile, in Ukrainian/Ruthenian-inhabited lands in the Austro-Hungarian
Empire (which ceased to exist in late October 1918), a West Ukrainian Peoples’ National
Republic based in the former Austrian province of Galicia was established in Lviv on 1
November 1918. Two months later the West Ukrainian Republic declared its unification with the
Ukrainian Peoples’ National Republic in Kyiv. Like its counterpart in Kyiv, the West Ukrainian
Republic understood the term “Ukrainian” in a civic sense; that is, as encompassing all the
5 Vasyl Markus, “International Legal Status of the Ukrainian State,” in Ukraine: A Concise
Encyclopedia, Vol. 2 (Toronto: University of Toronto Press, 1971), pp. 67-68 (Annex 110).
6 Jurij Borys, The Sovietization of Ukraine, 1917-1923 (Edmonton: Canadian Institute of
Ukrainian Studies, 1980), pp. 184-185 (Annex 111).
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republic's 7
"armies" 7 99
peoples living on its territory. In the republic’s proposed parliament, thirty percent of the
deputies were reserved specifically for Poles, Jews, and Austro-Germans.7
23. Despite the declaration of unity, the West Ukrainian Republic maintained its own
Ukrainian Galician Army. The operationally distinct armies of both republics were constantly
engaged in a struggle for survival. The West Ukrainian National Republic fought against Poland
(which eventually defeated it in July 1918). The Ukrainian National Republic fought against
Bolshevik-led Soviet Russia, anti-Bolshevik White Russian forces, and several insurgent peasant
“armies” operating on Ukrainian lands in the former Russian Empire. Even though both the
Kyiv-based Ukrainian National Republic and the Lviv-based West Ukrainian National Republic
were eventually defeated, they managed to mobilize tens of thousands of troops to fight and die
for their country—Ukraine.
24. It was the strength of belief in Ukrainian statehood, which played itself out during
the revolutionary era (1917-1921), that convinced the Bolshevik leadership in Moscow (Lenin
and Stalin) that Soviet Russia could only hope to maintain control over Ukraine if it sent the Red
Army to invade and occupy the country. Such tactics reflected the views of a wide range of
Bolshevik political (Trotsky, Manuilskyi, Rakovskii) and military (Muraviev, Antonov-
Ovseenko) leaders, and military operations were carried out in tandem and cooperation with a
7 Vasyl Kuchabsky, Western Ukraine in Conflict with Poland and Bolshevism, 1918-1923
(Edmonton and Toronto: Canadian Institute of Ukrainian Studies Press, 2009), p. 57 (Annex
117).
- 238 -
republic's
Workers', Peasants' Soldiers' People's 8 "state," 8 "1920," 1100
distinct Ukrainian Communist party (Bolshevik) governing a Soviet Ukrainian state closely
allied but nonetheless administratively separate from Soviet Russia.
C. The Soviet Era
25. The Ukrainian Republic of Councils, renamed in January 1919 the Ukrainian
Socialist Soviet Republic, had all the trappings of statehood. It made Kharkiv the republic’s
capital and adopted its own constitution (March 1919) which provided for a parliament
(Congress of Soviets of Workers’, Peasants’ and Soldiers’ Deputies) and governmental executive
body (Council of People’s Commissars). Its first major international act was a treaty of union
(December 1920) concluded by the representatives of two separate states, the Russian S.F. S.R.
(henceforth: Soviet Russia), and the Ukrainian S.S.R. (henceforth: Soviet Ukraine).8 Even
though the treaty provided for a military and economic union, Soviet Ukraine remained for a
while a “sovereign state,” with control of its agricultural sector, justice, education, and foreign
affairs.
26. In effect, during the period 1920-1923, Soviet Ukraine functioned—and was
perceived in the outside world—as an independent state. It maintained diplomatic representation
and/or was a party to treaties with several postwar countries (Poland, Czechoslovakia, Austria,
8 “Treaty of Union Between the Russian Soviet Socialist Republic and the Ukrainian Soviet
Socialist Republic, 28 December 1920,” in Magocsi, History of Ukraine, pp. 563-564 (Annex
118).
- 239 -
9
Ukraine's "sovereignty" "national"
"voluntary" Ukraine's 9 1111
Lithuania, Latvia, Estonia, and Turkey), and it concluded bi-lateral agreements with several other
countries.9
27. As part of the transformation of the former imperial Russian territorial space,
Soviet Ukraine’s “sovereignty” came to an end in December 1922. By that time Bolshevik
ideologists put aside their long-term goal of world revolution and, under the direction of the All-
Union Communist party General Secretary Joseph Stalin—someone who understood very well
the on-going strength of ethnic nationalism—decided to create a federation of “national”
republics. The 1922 treaty of union brought together Russia, Belorussia, Ukraine, and
Transcaucasia to form the Union of Soviet Socialist Republics (henceforth: the Soviet Union).
To this federal state structure could be added on a “voluntary” basis other Soviet republics,
something that indeed took place during the 1920s with the creation from Soviet Russia of three
republics in Central Asia (Turkmenistan, Uzbekistan, and Kirgizistan) and the reconfiguration of
Transcaucasia into another three republics (Georgia, Armenia, and Azerbaijan). Within this
albeit nominal federal state structure, Soviet Ukraine functioned as a common political space in
which residents were identified (and identified themselves) with an entity called Ukraine that
continued to enjoy some degree of autonomy.
28. For example, Soviet Ukraine continued for a while to maintain control over its
education system and cultural development. With the encouragement of the All-Union
authorities in Moscow, Soviet Ukraine’s government initiated in 1923 a program known as
9 Borys, Sovietization of Ukraine, pp. 309-311 (Annex 111).
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Ulcrainianization.1° program's republic's Union's to 1122
Ukrainianization.10 The program’s strategic goal was to legitimize the authority of the
Communist party (Bolshevik) of Ukraine by attracting to its ranks a broader spectrum of the
local population. Recognizing the actual and latent strength of Ukrainian national feelings, the
party hoped to attract support and new members by promoting the Ukrainian language and all
forms of Ukrainian culture.
29. The Ukrainianization program turned out to be remarkably successful, so that by
1929, three-quarters of the republic’s students attended schools in which Ukrainian was the
language of instruction. There was also an enormous increase in the number of publications and
cultural institutions (scientific bodies, libraries, theaters, and museums) using the Ukrainian
language.
30. So successful was the Ukrainianization program that the All-Union Communist
authorities in Moscow (after 1929 under the increasing authority of Joseph Stalin) feared that
they inadvertently were contributing to Ukrainian nationalism, which was always viewed as a
threat to Soviet rule. At the very same time, Stalin initiated the Soviet Union’s First Five Year
Plan in order more rapidly to industrialize the country and collectivize the agricultural sector, if
necessary, by force. Ukraine especially felt the brunt of forced collectivization, which led to the
deportation of over a million private farmers (kulaks) and the imposition of an artificial famine,
10 Terry Martin, The Affirmative Action Empire: Nations and Nationalism in the Soviet Union,
1923-1939 (Ithaca and London: Cornell University Press, 2001), p. 80 (Annex 113).
- 241 -
deaths.''
11 "Impact," 1133
known as the Holodomor (Death by Hunger) or Great Famine, that in 1932-1933 alone
accounted for nearly four million deaths.11
31. These tragic developments were accompanied by the full dismantlement of the
Ukrainianization program and a frontal attack on Ukrainian intellectual and cultural leaders. The
concerted simultaneous assault on Ukrainian agriculturalists and urban intellectuals did not
eliminate Ukrainian national feelings. In a real sense the positive results of Ukrainianization and,
in particular, the shared suffering during the Great Famine (Holodomor) provided a store of
common memories that would resurface in the future whenever changed political circumstances
allowed for a revival of the Ukrainian national movement.
32. Not all ethnic Ukrainians lived within the borders of Soviet Ukraine during the
interwar years of the twentieth century. Over 7.2 million (1930) lived beyond Soviet rule in their
age-old homelands ruled by neighboring Poland, Romania, and Czechoslovakia. The vast
majority (5.9 million) who lived in Poland (historic Galicia) were among the most fervently
patriotic component of all Ukrainians. After the defeat of the West Ukrainian National Republic
by Polish armies recounted above, Galician Ukrainians formed the background of several
underground political and military movements (Ukrainian Military Organization—UVO,
Organization of Ukrainian Nationalists—OUN, and Ukrainian Insurgent Army—UPA) that from
the 1920s through the 1940s fought against Poland, Nazi Germany, and the Soviet Union. Their
11 Oleh Wolowyna, “The Famine-Genocide of 1932-33: Estimation of Losses and Demographic
Impact,” in Bohdan Klid and Alexander J. Motyl, eds., The Holodomor Reader (Edmonton and
Toronto: Canadian Institute of Ukrainian Studies Press, 2012), p. 63 (Annex 120).
- 242 -
Europe's Stalin's country's Rus'/12 country's 12 1144
goal was to create a non-Soviet, independent Ukrainian state. For example, Ukrainian statehood
was proclaimed on the eve of and during World War II—in eastern Czechoslovakia (Carpatho-
Ukraine, November 1938-March 1939) and in former Polish-ruled Galicia (the Act of Renewal
of Ukrainian State, 30 June 1941). Although both entities were short-lived, they enriched the
population with historical memories about a once and possible future independent state.
33. The victory of the Soviet Union along Europe’s World War II eastern front and
Stalin’s insistence on extending his country’s borders farther to the west had a direct impact on
Soviet Ukraine. Ukrainian-inhabited territories in interwar Poland (eastern Galicia and western
Volhynia), Romania (northern Bukovina and parts of Bessarabia), and Czechoslovakia
(Subcarpathian Rus’/Transcarpathia)—a total of 165,000 square kilometers with eleven million
inhabitants—were added to Soviet Ukraine.12 This represented one-quarter of the postwar
country’s territory. For the first time in history, the vast majority of ethnic Ukrainian-inhabited
lands (as defined by Ukrainian scholars) were within the borders of a single Ukrainian, albeit
Soviet, state. Moreover, these were the lands (especially historic Galicia) where the Ukrainian
national movement had its earliest beginnings and where ethnic national identity was still at its
strongest and most widespread.
34. Although it became clear that by the late 1940s the goal of Ukrainian
independence was not achieved, the concept of Ukrainian statehood did not disappear and, in a
12 Magocsi, History of Ukraine, p. 688 (Annex 118).
- 243 -
13
Ukraine's "ceded"
13 1155
real sense, was given a new lease on life. In 1945, the Ukrainian Soviet Socialist Republic
(Soviet Ukraine) became one of the 51 founding members of the United Nations.
35. To be sure, Soviet Ukraine remained a part of the Soviet Union, but it did
function de jure as a distinct state that included: its own Permanent Mission to the United
Nations where its ambassadors represented Soviet Ukraine as distinct from the Soviet Union;
membership in a wide range of United Nations agencies (Atomic Energy, Labor,
Telecommunication, UNESCO, and World Health Organization, among others); and signatory to
over 120 international treaties, conventions, and declarations (the Paris Peace Treaties (1947),
Universal Declaration on Human Rights (1948), and the Moscow Treaty on the Limitation of
Nuclear Weapons (1963), among others).13
36. It is certainly true that Soviet Ukraine’s actions on the international stage could
only be undertaken in full cooperation and accord with the central government of the Soviet
Union. Nevertheless, Soviet Ukraine acted as a state and was perceived as such in several
international settings.
37. Even at home, Communist party leaders in Kyiv tried to enhance the interests of
Soviet Ukraine by lobbying the central government in Moscow for more investments from the
central budget in their republic. One example of such concern was Crimea. After it was “ceded”
13 Theofil I. Kis, Nationhood, Statehood and the International Status of the Ukrainian
SSR/Ukraine (Ottawa, London, and Paris: University of Ottawa Press, 1989), pp. 57, 59 (Annex
112).
- 244 -
1166
by Soviet Russia in 1954, the Soviet Ukrainian government took this matter seriously and did its
best to improve the economy of its new territorial acquisition.
38. Meanwhile, the idea of statehood independent of the Soviet Union lived on.
Dreams they may have been, but they remained alive throughout the 1960s and 1970s in the
writings of a wide range of persecuted and dissident intellectuals in Soviet Ukraine (Ivan Dziuba,
Valentyn Moroz, Ivan Svitlychnyi, and Soviet General Petro Grigorenko) and among the large
Ukrainian diaspora living in many countries worldwide, in particular the United States and
Canada.
III. Ukrainian Identity and Statehood Since Independence
39. As explained in the previous section, in the brief periods before 1991 in which an
independent Ukrainian state has existed, it has always comprised a population of various ethnic
and national backgrounds extending beyond the specifically Ukrainian ethnographic and
linguistic characteristics used by intellectuals to define the Ukrainian national movement in the
early nineteenth century. The earlier twentieth-century Ukrainian states accordingly adopted a
civic form of nationalism, capable of encompassing citizens who might self-identify as
something other than Ukrainian. As will be described below, the same is true of the independent
Ukrainian state that emerged from the collapse of the Soviet Union in 1991. However, the longlived
nature of that state compared to its progenitors of the early twentieth century, and the
regional environment in which it finds itself, have contributed to an evolution in Ukrainian
identity. Younger people who have grown up in independent Ukraine are now more likely to
identify as Ukrainian based on the civic values embodied in that state, regardless of whether they
- 245 -
Ukraine's "state."14 coup's Ukraine's 14 "1991," 1177
are native Ukrainian speakers or exhibit other markers of ethnic Ukrainianism prized by the
nineteenth-century intellectuals. As so powerfully illustrated by current events, the experience of
living under threat from an aggressive Russian neighbor has been another factor in forging a
common Ukrainian identity in contra-distinction to Russia, based on civic values such as
freedom, democracy, and protection of human rights.
A. Ukrainian Identity as a Civic Identity
40. On 24 August 1991 Soviet Ukraine’s elected parliament (Verkhovna Rada)
declared Ukraine an “independent democratic state.”14 This latest movement toward independent
statehood was a gradual process connected to the reforms and transformation of Soviet society
initiated after 1985 by the chairman of the All-Union Communist party, Mikhail Gorbachev.
41. Changes in Soviet Ukraine did not begin in earnest until 1989 and were
spearheaded by a civic organization called Rukh—the Popular Movement for Restructuring
Ukraine. Rukh supporters were elected deputies to parliament and they, in cooperation with
some Communist deputies, led that body to declare Ukraine a sovereign state (July 1990). The
next step toward statehood was triggered by unexpected events in Moscow: an attempted coup
(August 1991) to overthrow Gorbachev. In the wake of the coup’s failure Ukraine’s parliament
declared independence (24 August).
42. To legitimize further that declaration, the parliament called for a national
referendum to be held three months later on 1 December. Citizens eligible to vote were asked to
14 “Resolution of the Supreme Soviet of the Ukrainian S.S.R. on the Declaration of Independence
of Ukraine, 24 August 1991,” in Magocsi, History of Ukraine, p. 723 (Annex 118).
- 246 -
parliament's Ukraine's
15
Ukraine's "foreign").Ukraine's country's 15 istoriF ukrains'koF L'viv: "`for' 16 "Censuses," 1188
approve or disapprove the parliament’s declaration. The results were unexpected even among the
most fervent supporters of independence. No less than 90 percent of the electorate approved the
declaration. Even in those areas of the country that seemed less likely to support Ukraine’s
independence, well over half of the voters did so (Donetsk oblast 84%; Luhansk oblast 84%;
Crimea 54%).15
43. Within a few weeks of the 1 December referendum, the Soviet Union ceased to
exist (26 December 1991). During the next several months Ukraine’s independence was
recognized by most countries worldwide, by the United Nations, and by its post-Soviet
neighbors, the Russian Federation and Belarus.
44. As a typical European country, Ukraine was ethnically diverse. In the past, all
Soviet censuses recorded—actually required—that each inhabitant (including all children
regardless of age) indicate his or her nationality, usually the same as listed in personal
identification documents (so-called internal passports). The nationality designation (Ukrainian,
Russian, Polish, etc.) was distinct from citizenship (Soviet or in some cases “foreign”).16
45. According to the last Soviet census (1989), of Ukraine’s total population of 51.4
million nearly 73 percent were ethnic Ukrainians. The remaining 27 percent were among the
country’s over 100 national minorities. The numerically largest minority comprised 11.3 million
15 Atlas istoriï ukraïns’koï derzhavnosti (L’viv: Naukove tovarystvo imeni Shevchenka, 2013),
pp. 120-121 (map setting forth percentages of “persons who voted ‘for’” the referendum, by
oblast) (Annex 121).
16 Dominique Arel, “Demography and Politics in the First Post-Soviet Censuses,” Population,
Vol. 57, No. 6 (2002), pp. 812-813 (Annex 114).
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Ukraine's "majority" 17
"minorities" Ukraine's 17 1199
ethnic Russians (22 percent of Ukraine’s total population), followed by much smaller numbers
(all less than one percent) of Belarusans, Moldovans, Crimean Tatars, Bulgarians, Hungarians,
Romanians, Poles, Jews, and Armenians. Despite their small numerical size, some of these
minorities bordered on being a local “majority” if they happened to be concentrated in certain
areas such as the Hungarians in Transcarpathia, the Moldovans in Kherson oblast, the Bulgarians
along the Sea of Azov, the Crimean Tatars in Crimea, and the Greeks in and around the Azov
port city of Mariupol. The numerically largest national minority, ethnic Russians, actually did
comprise the majority of the inhabitants in several parts of eastern and southern Ukraine
(Chernihiv, Kharkiv, Donetsk, and Kherson oblasts, and Crimea).17
46. For the most part, the above mentioned “national minorities” are descendants of
Russians, Poles, Hungarians, etc. who have been living for centuries in the same place. In other
words, their ancestral homes are in present-day Ukraine; their motherland or homeland is
Ukraine, not Russia, Poland, Hungary, Romania, Moldova, Bulgaria, or somewhere else.
47. It is also important to distinguish between native language (also recorded in
censuses) and nationality. Not all Ukraine’s inhabitants who report Russian as their native
language/everyday language/language of convenience are ethnic Russians. Historically, a
significant percentage of self-identifying ethnic Ukrainians (formerly Little Russians) were
Russian speakers. This language phenomenon was strengthened during the seven decades of
Soviet rule (1921-1991), when Russian was given pride of place as the most important language
17 Magocsi, History of Ukraine, Table 53.3, p. 745 (Annex 118).
- 248 -
defming "people" "nationalities."18
"[culture."19 18 ofulcraine/
19 2200
in the country. Moreover, many of the national minorities, in particular Jews (whose numbers
were much greater in the past), Belarusans, Crimean Tatars, Bulgarians, and Greeks, were and
still are Russian speakers.
48. With the achievement of Ukrainian statehood in 1991, the question arose as to
whether this new political entity should encompass a population whose common national identity
is based on civic or ethnic principles. In other words, a civic-based national identity based on
association with a state representing a community of people linked by common citizenship who
live in a specific territory and are aware of being subject to a common body of laws and political
institutions? Or an ethnic-based national identity in which the state is associated primarily with a
particular ethnicity/nationality defined by its language, historical traditions, and cultural values?
49. The 1996 constitution responded clearly to that question by defining “the
Ukrainian people” as “citizens [] of all nationalities.”18
B. Civic Identity as a Complement to Traditional Notions of Ukrainian Identity
50. The constitutional emphasis on a civic identity did not eliminate more traditional
notions of what constitutes a Ukrainian identity. The constitution also called on “[t]he State [to]
promote[] the consolidation and development of the Ukrainian nation, [and] of its historical
consciousness, traditions and culture.”19 An especially important consolidating element was to be
18 Constitution of Ukraine: Preamble, p. 1, accessed at https://rm.coe.int/constitution-ofukraine/
168071f58b.
19 Constitution: Article 11, p. 2.
- 249 -
state's "development" "life."20
"minorities" "development."21 Ukraine's 22 "language," country's 23 213 Ibid.
22 Mel'nyk to rozmattia Ukrainy 23 "Zahal'noosvitni navchal'ni Ulcralny navchal'noho roku," 2211
the state’s sole official language, Ukrainian, whose “comprehensive development” was to be
promoted “in all spheres of social life.”20
51. While the Ukrainian language was to be given greater prominence, especially in
the state-controlled national education system, the “languages of national minorities” were
guaranteed “free development.”21 Of most concern was Russian, the mother tongue of 30 percent
of Ukraine’s inhabitants (2001 census).22 Although many of its speakers often expressed
dissatisfaction with the classification “minority language,” in practice Russian remained the
exclusive medium of instruction in 1,275 of the country’s elementary/high schools.23 At least
until the outset of the twenty-first century, Russian was the language of instruction in most
schools of higher learning (universities, colleges, and technical institutes) and it dominated the
print and especially non-print media throughout Ukraine.
52. Reforms in the school curriculum since independence have facilitated the
emergence of a new younger generation with a shared historical frame of reference and with the
shared Ukrainian experience at its core. The history of Ukraine was made a required subject
beginning at the upper level of elementary school, throughout high school, and in colleges,
20 Constitution: Article 10, p. 2.
21
Ibid.
22 Svitlana Mel’nyk and Stepan Chernychko, Etnichne ta movne rozmaïttia Ukraïny (Uzhhorod:
PoliPrint, 2010), p. 12 (Annex 119).
23 State Statistical Services of Ukraine, “Zahal’noosvitni navchal’ni zaklady Ukraïny na
pochatok 2013/14 navchal’noho roku,” sheet 64 (Annex 182).
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student's country's Rus' Ukraine's 2222
universities, and technical schools regardless of a student’s specialization. The former Soviet-
Marxist version of history was replaced by the Ukrainian national schema formulated already
before World War I by Mykhailo Hrushevskyi, the country’s most renowned historian and its
first president (1918). According to the Hrushevskyi schema, the medieval polity Kyivan Rus’ is
considered a proto-Ukrainian state, but the greatest emphasis is given to the seventeenth- and
eighteenth-century Cossack state which is understood to have struggled for independence from—
and not for unification with—Muscovy/Russia. As for the twentieth century Soviet era, it is no
longer depicted solely as a period of social and economic achievements, but also one of
widespread human suffering epitomized by the repression of the Ukrainian national idea and the
horrific death toll of the Holodomor (Death by Hunger) imposed on Ukraine during the Great
Famine of 1932-1933.
53. The formation of a shared Ukrainian sensibility has been further encouraged by
the efforts of local communities to transform their public spaces. Symbols of Soviet rule—in
particular statues of the Soviet founding father Lenin—were removed from squares in many
cities, towns, and villages, and usually replaced by monuments to the nineteenth-century
Ukrainian national bard, Taras Shevchenko. Events and personages suppressed by the Soviet
regime in the twentieth century were rehabilitated through a wide range of activity by: university
scholars and writers of school textbooks; various institutes of the National Academy of Sciences
of Ukraine; and the newly created Institute of National Memory. Ukraine’s public space was
simultaneously enriched by public monuments to commemorate the Great Famine (Holodomor)
and to honor figures (Andrei Sheptytskyi, Mykhailo Hrushevnskyi, Mykola Skrypnyk, and
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country's
Ukraine's Ukraine's Ukraine's country's 2233
Stepan Bandera, among others) who were opposed to aspects—or to the very premise—of Soviet
rule. Soviet-inspired names of several towns and cities were changed (Dnipropetrovsk became
Dnipro; Kirov became Kropyvytskyi) as were names of streets and squares, while the country’s
paper currency featured portraits of Ukrainian patriotic heroes (Taras Shevchenko, Bohdan
Khmelnytskyi, Ivan Mazepa, and Mykhailo Hrushevskyi).
54. On the one hand, the new emphases in the teaching of history and the reimagining
of the public space seemed to emphasize ethnic nationalism. On the other hand,
Ukraine’s de-Sovietization also reflected principles of civic nationalism in that there was an
effort to give voice to all Ukraine’s peoples.
55. New histories of Ukraine, especially required textbooks used in elementary and
high schools, gradually adopted a multicultural approach with greater attention given to the
achievements of non-ethnic Ukrainian individuals and communities. For example, special
programs organized by the Ministry of Education and Science provided training and awareness
about the Holocaust and its Jewish victims in Ukraine.
56. In the public sphere, places with concentrations of national minorities got street
names named after their own prominent figures. This is particularly evident in the number of
streets that now carry Jewish names (in Lviv, Chernivtsi, and Uman), Greek names (in
Mariiupol), and Hungarian names (throughout southern Transcarpathia).
57. Ukraine’s state and local authorities provided direct support and encouraged
foreign investment to build new or restore existing secular and religious monuments
representative of the country’s various peoples. Prominent among many examples are: for Jews,
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Khan's
city's "national" 2244
the Holocaust killing sites in Kyiv (Babyn Yar) and Kharkiv (Drobytskyi Yar), the Menorah
community center and TKUMA museum in Dnipro, the old Jewish quarter and Yanovsky labor
camp in Lviv, and numerous synagogues throughout the country; for Crimean Tatars, the Khan’s
Palace in Bakhchysarai, mosques throughout Crimea, and statues of cultural and political
activists; and university level institutions for Greeks (in Mariupol) and for Hungarians (in
Berehovo). In particular, multicultural Odessa was encouraged to create civic and cultural
centers devoted specifically to the city’s Greek, German, Jewish, Armenian, and Bulgarian
communities. There were even monuments restored or newly erected to satisfy the nostalgic
longing of some citizens for iconic figures from the pre-World War I empires that once ruled
Ukraine, whether Austria-Hungary (Habsburg Emperor Franz Joseph in Chernivtsi) or Russia
(Romanov Empress Catherine II in Odessa and her favorite minister Gregory Potemkin in
Kherson).
58. As the foregoing sections have explained, the modern sense of Ukrainian identity
is a complex and evolving phenomenon. Ethnic markers of Ukrainian identity, such as language
and culture, have been overlaid in recent decades by a civic identity that both informs how ethnic
Ukrainians think about the Ukrainian state and allows residents of Ukraine who lack those
markers to embrace their membership in that political community. At the same time, these ethnic
and civic Ukrainian identities have co-existed with other worldviews held by particular segments
of Ukrainian society, often dictated by age and geographical location.
59. For analytical purposes one might speak of four “national” identities organized
according to either ethnic or civic principles. In reality, however, these identities are not discrete
- 253 -
"national"
2255
or mutually exclusive and two or more of them typically combine in the self-identity of any
given Ukrainian.
1. Ethnic Ukrainian Identity
60. The ethnic Ukrainian identity is determined by the belief that a person is
Ukrainian if she or he speaks the Ukrainian language and believes in the idea of Ukraine as a
viable nation-state. Before independence ethnic Ukrainianism was strongest among the
population in western Ukraine, in particular the historic regions of Galicia and Vohynia. Since
independence, increasing numbers of young people throughout all parts of Ukraine (born or
largely acculturated in post-Soviet times) have embraced the ethnic approach to their “national”
identity.
2. Ethnic Russian Identity
61. The ethnic Russian identity applies to those citizens whose ancestors were ethnic
Russians who lived for generations, even centuries, in Ukraine, mostly although not exclusively
in the eastern and southern regions of the country. Not only is Russian their primary, often
exclusive language of communication, but their cultural affinity (often expressed through
adherence to the Moscow Patriarchate of the Orthodox Church) is to Russia, of which they (or
their forebears) were a part, whether in the form of the Russian Empire or the Soviet Union.
3. Soviet Civic Identity
62. The Soviet civic identity refers to people (often called Sovoks) who were born,
raised, and educated anywhere in the Soviet Union. Their language of communication is Russian,
which was the most prestigious language in that former state. As a corollary, they look down at
- 254 -
Ukraine's citizen's 2266
Ukrainian as little more than peasant speech, not a language at all, and refuse (often
demonstratively) to speak it despite language laws and guidelines adopted by the Ukrainian
authorities which they openly resent.
63. These Soviet (Sovok) types did have a nationality designation in their Soviet-era
identification documents, but it was for the most part a nominal identity. This was because
nationality, whether Russian or any other, was not considered important. Hence, association with
the Soviet state and its cultural and political values became the main characteristic of the Soviet
civic identity. In the absence of the Soviet Union, Ukraine’s Sovoks have looked to its successor,
the Russian Federation, as their ancestral homeland to which they again might one day belong
politically. Sovoks are mostly of the older generation (today fifty years plus) and found
throughout Ukraine, but mostly in the eastern and southern parts of the country, in particular
Crimea.
4. Ukrainian Civic Identity
64. The Ukrainian civic identity views the state as defined by a set of shared values to
which people of all ethnicities may subscribe. Key among those shared values is loyalty to the
state regardless of a citizen’s nationality and language. Hence, Russian or Crimean Tatar
language speakers are as Ukrainian as Ukrainian speakers. It is in this context that one can speak
of a modern multinational, multicultural Ukrainian state comprised of ethnic Ukrainians, Russian
Ukrainians, Polish Ukrainians, Jewish Ukrainians, Crimean Tatar Ukrainians, etc.
65. Also of crucial importance are shared values about what kind of state deserves the
loyalty of its citizens. In contrast to Russians (whether citizens of the Russian Federation or
- 255 -
country's state—"their" country's Ukraine's 2277
Sovoks living in Ukraine and various parts of the post-Soviet space) who view the state as an end
in itself, citizens who espouse a Ukrainian civic identity generally expect their state to abide by
democratic principles, including the rule of law and the protection of human rights, and are
supportive of the European integration process as a way of embedding these values in the
country’s institutions.
C. The Impact of Recent Events on Notions of Ukrainian Identity and Statehood
66. There is no question that recent events have had a profound impact on notions of
civic Ukrainian identity and statehood. The first of these was the Orange Revolution of 2003-
2004. The significance of this event was not only that it resulted in a second presidential election
overturning the results of the first, but that it demonstrated the power of the people. For societies
like Ukraine, used to authoritarian and dictatorial rule, the Orange Revolution transformed the
national psyche of large segments of the population. Ordinary citizens could not only take to the
streets and protest, but they could also effect real change. Moreover, their personal sacrifice over
several weeks (in the face of mid-winter freezing temperatures) was done in order to protect the
interests of the state—“their” state.
67. The second event that ultimately sealed the civic aspect of Ukrainian national
identity was the Revolution of Dignity. It played itself out over four months (November 2013-
February 2014) on the central square of the country’s capital Kyiv, known as the Maidan, after
Ukraine’s president at the time, Viktor Yanukovych, refused to sign a memorandum of
agreement with the European Union. The protests this time were related to the interests of
Ukraine as a state and its geopolitical status, particularly as, ever since the Orange Revolution
- 256 -
government's Ukraine's 24
24 2288
ten years earlier, Ukrainian society and identity had become increasingly oriented toward the
European Union. Ultimately, the protestors defeated the government’s special forces and drove
President Yanukovych from office. A new pro-European government, with the enthusiastic
support of Ukraine’s citizenry, now ruled the country.
68. The victory was bittersweet, however, because in the immediate wake of the
Revolution of Dignity, Russia invaded (late February) and annexed Crimea (24 March) and
supported separatists in the Donbas (the eastern part of the country comprised of the Donetsk and
Luhansk oblasts) to secede from Ukraine. After eight years of conflict in the east with separatist
forces assisted by Russia, over 13,000 Ukrainians were killed and many more driven from their
homes in the Donbas to other parts of the country.24
69. The forcible annexation of Crimea and the war with Russia and pro-Russian
separatists in the Donbas has done more than anything else to enhance a civic state identity
among Ukrainians, regardless of their ethno-national background. The majority of soldiers in the
Ukrainian Army fighting against pro-Russia separatists in eastern Ukraine turned out to be local
Russian-speaking inhabitants. It is clear that the protestors on the Maidan and the Russianspeaking
soldiers in the east were speaking, fighting, and dying for their state—Ukraine.
70. The newest war with Russia (February 2022) has shown how strong and widely
shared the Ukrainian identity, whether ethnic or civic, has become. The valiant resistance of
24 Radio Svoboda, The UN has counted the number of victims of hostilities in Donbass (19
February 2021), accessed at https://www.radiosvoboda.org/a/news-oon-kst-gerty-boyovyhdonbas/
31110937.html (Annex 170).
- 257 -
defmed defmed defmed "people" 2299
Ukrainians from all walks of life to the Russian invasion is thus both evidence of, and will
further reinforce, the trend in Ukrainian self-identity to define itself in contradistinction to Russia
and in alignment with European values.
IV. Conclusion
71. The idea of Ukrainian statehood has a long tradition that dates back at least to the
mid-seventeenth century. The Ukrainian national movement kept the idea of statehood alive
during the nineteenth century. Statehood was eventually, if briefly, realized during the post-
World War I revolutionary era (1917-1920) that witnessed the establishment of no less than four
Ukrainian states under five different regimes. Only one of these republics survived, Soviet
Ukraine, which joined with Soviet Russia in December 1922 to form the Union of Soviet
Socialist Republics—the Soviet Union.
72. After gaining its independence, the modern Ukrainian state adopted a constitution
in 1996 which outlined its structure as a centralized (not federal) state. The question nevertheless
remained open as to whether Ukraine was to be a state based on ethnic or civic principles; in
other words, a state defined by the cultural values of ethnic Ukrainians, or a state defined by the
common identity of all citizens regardless of their nationality or language.
73. The evolution of Ukraine since its establishment in 1991, and in particular
following two social upheavals—the Orange Revolution (2003-2004) and the Maidan Revolution
of Dignity (2013-2014)—has shown that Ukraine is moving more and more in the direction of
becoming a nation-state where Ukrainianness is defined (and Ukrainians self-identify as such)
primarily by the civic principle enunciated in its constitution: “the Ukrainian people” are
- 258 -
"nationalities."25 "Putin's War," 25 3300
“citizens of Ukraine of all nationalities.”25 Among the shared aspirations of the Ukrainian civic
identity is a commitment to a state governed by European democratic values with an emphasis
on freedom of expression, human rights, and the rule of law. The strength of the civic principle
has been proven beyond all expectations by the reaction to “Putin’s War,” the current Russian
invasion (February 2022), during which Ukrainian citizens of all regions, nationalities, gender,
and language have stood up, fought, and died defending the state with which they fully
identify—Ukraine.
25 Constitution: Preamble, p. 1.
- 259 -
Signed in r0 VliAD on i"t"
Paul Ro ert si
- 260 -
Annex 7
Expert Report of Martin Scheinin (14 April 2022)
- 261 -
- 262 -
INTERNATIONAL COURT OF JUSTICE
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE
SUPPRESSION OF THE FINANCING OF TERRORISM AND OF THE
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF
RACIAL DISCRIMINATION
between
UKRAINE
and
THE RUSSIAN FEDERATION
EXPERT REPORT OF PROFESSOR MARTIN SCHEININ
- 263 -
Ukraine's Russia's Russia's Russia's 11
I. Scope of This Report
1. This Expert Report pertains to the case currently pending before the International Court
of Justice, initiated by Ukraine against the Russian Federation and concerning Ukraine’s claims
that the Russian Federation has breached its obligations under the International Convention on
the Elimination of All Forms of Racial Discrimination (ICERD or Convention), as well as
under the International Convention for the Suppression of the Financing of Terrorism. I have
been asked by counsel to Ukraine to comment on Russia’s claim that its conduct Ukraine
alleged to be in violation of the ICERD may be justified as a legitimate restriction of human
rights on national security grounds. Counsel have asked me to consider, in particular, whether
the implementation of Russia’s anti-extremism laws constitutes a valid defence to a claim of a
breach of ICERD obligations.
2. In this report, I first conclude that while the presence of a genuine legitimate aim, such
as national security or public order, may under certain circumstances justify restrictions on
underlying substantive human rights, this can never obviate the need to assess whether those
restrictions nevertheless constitute racial discrimination. To the contrary, compliance with the
ICERD is one of the preconditions for any restriction passing the permissible limitations test
in respect of those underlying substantive rights that are subject to some permissible
limitations. Hence, the claim by Russia that a verified national security aim would, by
definition, exclude a finding of racial discrimination, is erroneous.
3. I further conclude that, even if countering extremism was accepted as a legitimate aim
that per se could justify restrictions upon some substantive human rights — a proposition that
is questionable at best — the above conclusion would apply, i.e., its invocation would be no
excuse for racial discrimination. In the current context that, however, is not even the case. In
my view, the framework of Russia’s 2002 Federal Law on countering extremism and Article
280.1 of the Criminal Code, together with their extension to Crimea and amendment, entail a
- 264 -
Master's `Order'.
Abo
22
discriminatory purpose, or at least a discriminatory effect, within the meaning of Article 1,
paragraph 1, of the ICERD. Hence, no further assessment pursuant to the permissible
limitations test is needed regarding whether the application of this framework might in some
instances have met some of the other requirements for the permissibility of restrictions on other
human rights. The extensive reliance by the Russian Federation on its anti-extremism law for
its measures that have adverse effect upon the enjoyment of any human right by Crimean Tatars
or ethnic Ukrainians in Crimea, and for justifying those measures, demonstrates a breach of
ICERD simply because of the presence of a purpose that is discriminatory, or because of the
discriminatory effect of the measures in question.
II. Qualifications and Credentials of the Expert
4. I was educated as a lawyer in Finland, graduating with a Master’s degree from the
University of Turku in 1982. After some years in public service focused on Finnish
constitutional law, I returned to academia and completed my doctoral degree in 1991 at the
University of Helsinki with a PhD thesis entitled ‘Human Rights in Finnish Law: A Study in
Constitutional Law of the Domestic Validity of International Human Rights Treaties and the
Applicability of Human and Constitutional Rights in the Finnish Legal Order’.
5. One main strand of my academic and professional career has been related to
constitutional law, and in particular the status and implementation of international human rights
norms in domestic legal systems. Constitutional law was the field of my first professorial
position at the University of Helsinki (1993-1998) and was included in the scope of my Chair
as Armfelt Professor of Constitutional and International Law that I thereafter held at Åbo
Akademi University (1998-2008). I have been active in the International Association of
Constitutional Law since 1987, culminating as serving as its President in 2010-2014. In that
capacity, I also participated as a permanent invited Observer in the sessions of the Venice
Commission of the Council of Europe. In Finland, I have since the 1980s in various expert
- 265 -
Simi Committee's Association's Union's 33
capacities contributed to the drafting of constitutional amendments or other statutes related to
constitutional law or the implementation of international human rights norms, most importantly
a comprehensive reform of the constitutional rights chapter of the Finnish Constitution that was
completed in 1995. My most recent engagement of that type related to membership of a
Government Commission that in 2021 produced a proposal for improvements in the statutory
framework for the recognition of the rights of the indigenous Sámi people in Finland. Currently
I serve as a member of the Scientific Committee of the Fundamental Rights Agency of the
European Union.
6. A second and main strand of my academic and professional career has been related to
international human rights law and, in particular, to human rights treaties with global reach,
adopted by the United Nations General Assembly. I have published extensively articles, book
chapters and books, including with Oxford University Press and Cambridge University Press.
In 1997-2004 I served as a member of the Human Rights Committee, the treaty body
established under the International Covenant on Civil and Political Rights, including as the
main author of the Committee’s General Comment No. 29 on states of emergency. Parallel to
membership of the Human Rights Committee, I was the Chairperson of the International Law
Association’s Committee on Human Rights Law and Practice. In 2005-2011 I was the first
holder of the mandate of the United Nations Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism which
mandate included review of national counter-terrorism laws and their application, as to their
compatibility with international human rights law. Between 2008 and 2015 I was either the
leader or a contributor in three consecutive collaborative research projects funded by the
European Union’s Seventh Framework Program for research and development, all related to
the interface between security and human rights, especially in the context of the threats of
terrorism or other serious crime. Much of my academic writing has focused on the assessment
- 266 -
`discrimination':
"discrimination" life.'
`purpose' `effect' `race' 44
of the compatibility of security-based restrictions upon human rights as to their permissibility
under international law. This line of academic research coincided with my position in 2008-
2020 as Professor of International Law and Human Rights at the European University Institute
in Florence where I also served as the Dean of Graduate Studies in 2016-2018. Since August
2020 I am British Academy Global Professor at the University of Oxford, conducting research
on the capability of international human rights law to address the multiple human rights
challenges that emerge in the digital realm.
7. During my career, I have served as expert witness in cases before the Inter-American
Court of Human Rights and in one investor-state arbitration case, as well as co-counsel in some
individual cases before the European Court of Human Rights.
III. The ICERD Prohibition Against Racial Discrimination Is Absolute and Allows
No Exception for Measures Taken on National Security Grounds
8. Article 1 of the ICERD includes a comprehensive definition of what the Convention
through its subsequent provisions addresses and prohibits as ‘racial discrimination’:
In this Convention, the term “racial discrimination” shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent, or national
or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other
field of public life.1
9. Judged by the ordinary meaning of its text, this provision forms a definitional basis for
an absolute and unconditional prohibition against any differentiations that would have the
purpose or effect of nullifying or impairing the enjoyment of human rights based on any of the
characteristics of an individual or a group as listed in the provision. Notably, discriminatory
‘purpose’ and ‘effect’ will be prohibited in equal terms, and no distinction is made between the
ground of ‘race’ as compared to any of the other, equally prohibited, grounds of differentiation.
1 U.N. International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD), 660 U.N.T.S. 195 (entered into force 4 January 1969), art. 1(1).
- 267 -
`discrimination' `discrimination' `discrimination' `exercise' `exclusion' `restriction' `distinction' `preference' Covenant's 55
Hence, for instance discrimination on account of ethnicity, more precisely ethnic origin,
constitutes ‘racial discrimination’ for purposes of the ICERD.
10. It is clear from the wording of the provision that there is no requirement that ‘racial
discrimination’ could only occur where there is a violation of another (so-called substantive)
human right. For ‘racial discrimination’ in the meaning of Article 1, paragraph 1, it is sufficient
that the ‘enjoyment or exercise’ of another human right is subject to being impaired.
11. Finally, the wording of the above-quoted definition is disjunctive: racial discrimination
is prohibited irrespective of whether it manifests itself as a discriminatory purpose or in the
form of discriminatory effect. The presence of either one on its own amounts to racial
discrimination. While the words ‘exclusion’ and ‘restriction’ in paragraph 1 carry a negative
connotation, the same cannot be said about the terms ‘distinction’ and ‘preference’ which do
not carry any such connotation. Therefore, a natural and literal reading of the Convention is
that either a purpose to differentiate or an effect that differentiates between individuals or
groups on any of the grounds listed in Article 1, paragraph 1, may equally amount to racial
discrimination and therefore are prohibited under the Convention.
12. Beyond the qualifying provisions of paragraphs 2 to 4 in Article 1 which are a part of
the definition of racial discrimination, ICERD does not include any clauses concerning
limitations or exceptions. Neither is there is any provision about a possibility to derogate from
the Convention on national security grounds, such as during a state of emergency that threatens
the life of the nation. Here, it is indicative that the International Covenant on Civil and Political
Rights (ICCPR) in its derogation clause of Article 4, paragraph 1, explicitly affirms that the
core content of the Covenant’s multiple prohibitions against discrimination in Articles 2, 3, 14,
23, 24, 25 and 26 is absolute and non-derogable in respect of any discrimination based solely
- 268 -
`origin'.Committee's itself fide
2 3 4 66
on ‘race, colour, sex, language, religion or social origin’.2 This non-derogable nature of the
core components of the prohibition against discrimination was clarified in the Human Rights
Committee’s General Comment on states of emergency, as follows:
According to article 4, paragraph 1, one of the conditions for the justifiability
of any derogation from the Covenant is that the measures taken do not involve
discrimination solely on the ground of race, colour, sex, language, religion or
social origin. Even though article 26 or the other Covenant provisions related to
non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24,
paragraph 1, and 25) have not been listed among the non-derogable provisions
in article 4, paragraph 2, there are elements or dimensions of the right to nondiscrimination
that cannot be derogated from in any circumstances. In
particular, this provision of article 4, paragraph 1, must be complied with if any
distinctions between persons are made when resorting to measures that derogate
from the Covenant.3
13. Reference is also made to General Comment No. 24 by the Human Rights Committee,
where reservations to obligations of non-discrimination are deemed as contrary to the object
and purpose of the ICCPR and hence impermissible.4 The impermissibility of reservations and
the absolute and non-derogable nature of the prohibition against racial discrimination support
the contentions that this norm is both an erga omnes obligation of States and a peremptory (jus
cogens) norm of customary international law.
14. The ICERD prohibition against racial discrimination is absolute, subject only to the
qualifying provisions found in Article 1 itself. Hence, the Convention allows for carefully
designed special measures to the benefit of underprivileged groups and for bona fide
differentiations between citizens and non-citizens, or between various categories of noncitizens,
that do not deviate from the general norm of racial discrimination being prohibited in
2 U.N. International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171
(entered into force 23 March 1976), art. 4(1); see also id., arts. 2(1), 3, 14(1) & 23-26.
3 Human Rights Committee (HRC), General Comment No. 29: Art. 4: Derogations during a
State of Emergency, CCPR/C/21/Rev.1/Add.11 (2001), para. 8.
4 HRC, General Comment No. 24: Issues Relating to Reservations, CCPR/C/21/Rev.1/Add.6
(1994), para. 9.
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`discrimination' Russia's Ukraine's 5 77
absolute terms.5 These qualifying provisions must be understood in their context and in light
of the object and purpose of the Convention, so that their application preserves the integrity of
the main clause in paragraph 1, including in respect of an absolute and unconditional
prohibition against ‘racial discrimination’ as defined by the Convention.
15. The fact that the ICERD does not include a permissible limitations clause, in turn,
entails that where another human rights treaty, including the ICCPR, does include such clauses,
these clauses provide no justification whatsoever for limitations that would have the purpose
or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights on
account of any of the grounds listed in ICERD Article 1, paragraph 1. The relevance of this
principle in the context of restrictions upon other, so-called underlying or substantive human
rights, often on national security grounds, will be addressed in the following section.
IV. To the Extent Russia Argues That Its Restrictions on Underlying (Substantive)
Human Rights Are Justified on National Security Grounds or Other
Internationally Recognized Legitimate Aims, Such Restrictions Are Subject to
Strict Substantive and Procedural Requirements
16. A central tenet in Russia’s response to Ukraine’s claims of breaches of the ICERD is
that, as many human rights allow for permissible limitations and the application of a
proportionality test when assessing whether conduct that prima facie interfered with the
enjoyment of the human right in question constituted a violation of it, the claims by Ukraine
could fall under such permissible limitations of those rights and, as a consequence, would not
violate the ICERD either. As an example of how Russia frames this argument, reference is
made to its Counter-Memorial where Russia explains:
[I]nasmuch as a measure can be reasonably justified or deemed legitimate, it
does not qualify as discriminatory. Possible justifications include, among
others, reasonable limitations to human and/or civil rights as may be necessary
in a democratic society, provided for under applicable law and subject to due
5 See ICERD, art. 1(2)-(4).
- 270 -
"unlimited." citizens' — — defmition State's citizens' Federation's — 6 Russia's 7 8 Id, 88
process, in order to protect public order from acts such as terrorism, extremism,
etc.6
17. Elsewhere in its Counter-Memorial, Russia seeks to justify its measures in respect of
the Mejlis as follows:
As has been noted, individual rights are “not unlimited.” The principle that
legitimate limitations may be placed to human rights in certain specific
circumstances is a well-established principle of international law and forms an
intrinsic component of these rights. Such limitations may be legitimately placed
on the exercise of human rights for instance in cases of threat to essential
interests pertaining to national security, public safety, public order, health and
morals, or the free exercise of other citizens’ human rights and fundamental
freedoms. Legitimate limitations also contribute to the protection of the human
rights and freedoms of others. Since legitimate limitations placed on the
exercise of human rights do not entail a violation, impairment or nullification
of such rights, it follows that – to the extent that such legitimate limitations give
rise to a differential treatment – they constitute an objective and reasonable
justification that excludes by definition any discriminatory treatment under
CERD.7
18. Similarly, in a concluding section of its Counter-Memorial, Russia argues that its
measures in respect of the Mejlis and its leaders
constitute legitimate limitations permissible in a democratic society for the
purpose of protecting the State’s essential interests of national security, public
order and safety, other citizens’ lawfully protected rights and interests as well
as the integrity and constitutional order of the Russian Federation. These
grounds are provided under the Russian Federation’s domestic law and comply
with international law. Since they are based on an objective and reasonable
justification, these measures cannot constitute discrimination in comparison
with standard practice. In addition, they do not suggest any racially-oriented
discriminatory or arbitrary application of the legal framework – let alone a
campaign of systematic racial discrimination. The measures that the Russian
Federation has adopted against the Mejlis and its leaders manifestly do not come
under nor violate CERD.8
19. As explained in the preceding section of this report, the ICERD itself is not subject to
derogation or limitation on national security or other grounds. Therefore, the only
understandable interpretation of the passages quoted above is that Russia is claiming that it was
6 Russia’s Counter-Memorial on the ICERD, para. 98 (footnotes omitted).
7 Id., para. 154 (footnotes omitted).
8 Id., para. 249.
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concerned." 9 1° 99
entitled to restrict the underlying substantive rights in question (for example, freedom of
assembly or freedom of speech), either through a derogation from such human rights treaties
that allow for it, or, more likely, in the form of permissible limitations pursuant to the same
treaties. The quoted passages could therefore be understood as implied references to the ICCPR
and to the European Convention on Human Rights (ECHR).9
20. Before delving into the more likely option that Russia is referring to permissible
limitations, I want to address the unlikely alternative that Russia seeks to justify its measures
as derogations from the ICCPR and the ECHR. It needs to be noted that Russia has not invoked
the existence of a state of emergency threatening the life of the nation that would justify
derogations from some human rights under the framework of the ICCPR or ECHR. Had it
sought to justify its measures as derogations from human rights, justified by the existence of a
threat to the life of the nation, it would have been under a procedural obligation officially to
declare a state of emergency and to notify other Parties to the human rights treaty subject to
any derogation, through the intermediary of the Secretary-General of the United Nations as far
as the ICCPR is concerned10 and the Secretary-General of Council of Europe as far as the
ECHR is concerned.11 This has not happened. Had it happened, any derogations from human
rights would still be subject to international scrutiny, including under the requirements of
necessity and proportionality and, as explicitly spelled out in ICCPR Article 4, paragraph 1, a
non-derogable prohibition against racial discrimination. And, in any case, even a state of
emergency and derogations from the ICCPR and ECHR would not justify any conduct that
amounts to racial discrimination under the ICERD.
9 See, generally, ICCPR; Council of Europe, European Convention on Human Rights
(ECHR), E.T.S. 5 (entered into force 3 September 1953).
10 ICCPR, art. 4(3).
11 ECHR, art. 15(3).
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Russia's 12 13 1 /1100
21. In the absence of a declaration of a state of emergency and accompanying notification
of other Parties, Russia’s invocation of national security grounds as justifying restrictions upon
some human rights must therefore be assessed through the permissible limitations test, as
applicable under those human rights treaties that do include rights that are qualified by
limitations clauses. Again, the ICCPR and the ECHR provide the pertinent frame of reference.
Yet, even this line of argument fails because Russia has not explained how its conduct would
meet the well-established cumulative requirements for permissible limitations that apply under
the framework of the underlying substantive human rights in question (see, paragraphs 22 to
27, below).
22. The below analysis will focus on the ICCPR due to its close interrelationship with the
ICERD as two central United Nations human rights treaties.12 The purpose of the analysis is
not to pronounce on what measures are permissible under the ICERD but on what is the role
of the prohibition against racial discrimination in assessing the permissibility of limitations
upon ICCPR rights. An elaborate and complete framework for a permissible limitations test
under the ICCPR has been articulated in General Comments by the Human Rights Committee.
Particularly two of them, which although they expressly apply only to the ICCPR, have made
a lasting contribution to international human rights law as a whole: General Comments No. 27
(freedom of movement, ICCPR Article 12)13 and No. 37 (freedom of assembly, ICCPR Article
12 The CERD Committee itself has made references to the Twin Covenants of 1966 (the
International Covenant on Economic, Social and Cultural Rights and the ICCPR) as a general
human rights framework underlying the ICERD. See CERD Committee, General
Recommendation No. 11 on Non-citizens (Forty-second Session 1993), contained in U.N. Doc.
No. A/48/18, para. 3; CERD Committee, General Recommendation No. 30 on Discrimination
against Non-citizens (Sixty-fourth Session 2004), CERD/C/64/Misc.11/Rev.3, para. 2.
13 HRC, General Comment No. 27: Article 12 (Freedom of Movement),
CCPR/C/21/Rev. 1/Add.9 (1999).
- 273 -
`law', `law' `core' HRC, 15 16 17 18 1111
21).14 Seven elements of such a rigorous permissible limitations test can be distilled from these
texts to guide the assessment of national law and its application. These elements, applicable in
respect of not only Articles 12 and 21 but generally the ICCPR provisions with permissible
limitations clauses, can be summarized as follows:
(1) Any human rights intrusion must be ‘provided by the law’, i.e., have a legal basis that
meets certain conditions of ‘the quality of the law’ (e.g., proper enactment and
publication, precision and foreseeability in application);15
(2) The inviolability of human rights is not limited to non-derogable or jus cogens rights,
such as the prohibition against racial discrimination, alone, but also extends to include
‘essential core’ aspects of other human rights that otherwise would allow for
permissible limitations, but not in respect of their essential core content;16
(3) Human rights intrusive measures must be necessary in a democratic society, also
entailing an obligation to choose the least intrusive measure from amongst equally
effective ones;17
(4) There must not be unfettered (administrative) discretion in the application of intrusive
measures;18
14 HRC, General Comment No. 37: On the Right of Peaceful Assembly, CCPR/C/GC/37
(2020).
15 See, e.g., HRC, General Comment No. 27, paras. 11-12; HRC, General Comment No. 37,
paras. 36 & 39.
16 See, e.g., HRC, General Comment No. 27, para. 13; HRC, General Comment No. 37, para.
36.
17 See, e.g., HRC, General Comment No. 27, paras. 11, 14; HRC, General Comment No. 37,
paras. 37 & 40.
18 See, e.g., HRC, General Comment No. 27, para. 13; HRC, General Comment No. 37,
paras. 38-39.
- 274 -
`security' `order');`need', `security' 19 20 21 1122
(5) Any intrusive measure must have a genuine and identifiable legitimate aim (such as
‘national security’ or ‘public order’);19
(6) Intrusive measures must conform to the (strict) principle of proportionality in that the
expected or actual benefit obtained towards serving the legitimate aim invoked
outweighs any adverse impact upon human rights;20 and
(7) Intrusive measures must not amount to a breach of other human rights obligations than
the one under which the scrutiny is performed, including not only ICCPR rights but
also human rights protected by other treaties, including the ICERD and its nonderogable
jus cogens prohibition against racial discrimination.21
23. As is reflected in item (5) of the above formulation of the permissible limitations test,
the existence of a legitimate aim, sometimes referred to as ‘pressing social need’, is a factor
that may justify interferences in the enjoyment of those human rights that do allow for
permissible limitations. It provides no justification for exceptions from, or limitations upon,
those human rights that are absolute, including the prohibition against racial discrimination. In
respect of rights that do allow for restrictions, the existence of a legitimate aim is but one of
the seven cumulative requirements and, as item (6) explicates, the mere invocation of a
legitimate aim is not sufficient but what matters is a demonstrated benefit towards meeting the
legitimate aim without human rights intrusions that would be disproportionate compared to that
benefit.
24. The concept of ‘national security’ is recognized in international human rights law as a
legitimate aim that may justify necessary and proportionate restrictions upon many human
19 See, e.g., HRC, General Comment No. 27, para. 11; HRC, General Comment No. 37,
paras. 36 & 40-47.
20 See, e.g., HRC, General Comment No. 27, paras. 14-15; HRC, General Comment No. 37,
paras. 36 & 40.
21 See, e.g., HRC, General Comment No. 27, paras. 11 & 18.
- 275 -
prima facie 22 23 1133
rights.22 Other per se legitimate aims of public safety, public order, (public) health or morals,
or the rights of others appear in varying constellations in the limitations clauses of various
ICCPR articles.23
25. One notable area where States have sought to justify their human rights intrusive
measures through a reference to national security is counter-terrorism. This context constitutes
a prima facie legitimate invocation of national security as a legitimate aim under item (5) of
the permissible limitations test, allowing for a step-by-step assessment of whether the other
requirements for permissible limitations also were met. There is a large number of international
conventions and protocols that impose upon States international legal obligations in the field
of counter-terrorism. The compatibility of any human rights intrusive measures taken by States
in the implementation of these obligations will be assessed under the framework provided by
human rights treaties concerning permissible limitations, most often but not exclusively by
addressing such application under the recognized legitimate aim of protecting national security.
26. Russia has not presented in its Counter-Memorial the necessary facts and arguments
needed to demonstrate that its measures meet the cumulative requirements of permissible
limitations on the basis of national security or related aims. The invocation of a legitimate aim
is but one such requirement. The validity of such an invocation must also be assessed on the
basis of the demonstrated benefit that was obtained towards meeting the legitimate aim through
human rights intrusions. Further, those intrusions must be minimized to a degree shown to be
necessary and must remain proportionate in comparison with the benefit obtained for meeting
the legitimate aim.
22 See ICCPR, arts. 12, 13, 14, 19, 21 & 22 (explicitly mentioning national security as a
legitimate aim that may justify restrictions).
23 See id., arts. 12(3), 14(1), 18(3), 19(3)(a)-(b), 21 & 22(2).
- 276 -
per Russia's `events' `extremism' Russia's statute 25
Russia's — — Russia's 24 Russia's 98,154-156.
25 166-1144
27. Russia has demonstrated none of this. Rather, it has sought to explain its conduct
through references to its own domestic statutes or case law, something that constitutes neither
a proper justification under international law nor a proper application of the permissible
limitations test.24 Therefore, its references to national security or another per se legitimate aim
cannot provide proper justification in respect of any intrusions into so-called underlying
substantive rights. For example, regarding the ban on the Mejlis, Russia’s Counter-Memorial
recapitulates the reasons for the ban as presented in the 2016 judgment of the Supreme Court
of Crimea, including several items without a national security basis, such as using the fact of
organising ‘unauthorized events’ as a reason for a ban based on ‘extremism’ as covered by
Russia’s anti-extremism statute.25
28. More importantly, even assuming that Russia could demonstrate that its measures meet
all other requirements of the permissible limitations test except compliance with other human
rights (item 7 in the list presented in paragraph 22, above), Russia’s argument still fails, because
a reference to national security or another per se legitimate aim cannot justify a deviation from
ICERD and its absolute prohibition against racial discrimination. It is a precondition for the
permissibility of any limitations under the human rights treaties in question – typically the
ICCPR – that the conduct in question must not amount to a violation of other human rights.
My conclusion is that Russia’s invocation of national security or other aims recognized as per
se legitimate in the ICCPR, or international human rights law more generally, cannot justify
any conduct that would amount to a violation of the prohibition against racial discrimination
as defined in ICERD Article 1.
29. The prohibition against discrimination based on any of the factors listed in ICERD
Article 1, paragraph 1, is absolute. There is no derogations clause or limitations clause in the
24 See, e.g., Russia’s Counter-Memorial on the ICERD, paras. 98, 154–156.
25 See id., paras. 166–170.
- 277 -
`origin'. Russia's Russia's Russia's Ukraine's Russia's Ukraine's Russia's `extremism' `Activities', Ukraine's 26 Ukraine's Russia's `Activity,' Activities,' `Activity'.
1155
Convention. As the prohibition against racial discrimination is understood as an absolute treaty
norm binding upon all Parties of the Convention, this absolute nature of the treaty norm extends
to any discrimination based on ‘race, colour, descent, or national or ethnic origin’. The
Convention does not include, and does not allow for, a general proportionality or reasonability
assessment of whether certain conduct by a State amounts to discrimination. Further, there is
no room for considerations of whether, for instance, another, presumably legitimate, aim
existed that made is necessary and proportionate to engage in some degree of racial
discrimination. Therefore, compliance with the prohibition against racial discrimination
remains as an independent requirement for the permissibility under international law of any
restrictions upon so-called underlying substantive human rights. Russia’s line of argument,
cited verbatim in paragraphs 16 to 18 above, is erroneous.
V. Russia’s Anti-Extremism Laws Do Not Satisfy the Requirements for Permissible
Restrictions on Underlying (Substantive) Human Rights
30. Counsel for Ukraine have specifically asked me to address whether the implementation
of Russia’s anti-extremism laws constitutes a valid defence to Ukraine’s claims concerning
Russia’s breach of its ICERD obligations. Based on my review of Ukraine’s Memorial and
Russia’s Counter-Memorial, I note that both Parties have made numerous references to the
concept of ‘extremism’ as enshrined in the domestic law of the Russian Federation, in particular
Federal Law No. 114-FZ of 25 July 2002 ‘On Combating Extremist Activities’, as subsequently
amended.26 The application and enforcement by Russian authorities of this piece of federal
statutory law was in 2014 extended to Crimea. I further note that the Russian Federation seeks
to dismiss Ukraine’s claims of racial discrimination by seeking to justify its actions as measures
26 See, e.g., Ukraine’s Memorial, paras. 385-386, 510; Russia’s Counter-Memorial on the
ICERD, paras. 156-159, 371. Note that the title of the law is translated by different sources as
‘On Combating Extremist Activity,’ ‘On Combating Extremist Activities,’ and ‘On
Counteracting Extremist Activity’.
- 278 -
Russia's `extremism' Russia's `security'
— — citizens' `extremism': 27 Russia's 28 1166
taken in the application of national legislation in force, specifically its federal framework of
anti-extremism law.27
31. The immediately preceding section of this report addressed Russia’s invocation of aims
that per se are legitimate as objectives that may justify certain limitations upon specific
substantive human rights, including under the ICCPR. The concept of national security had a
prime place there. Here, attention shifts to the prominent role of ‘combating extremism’ in
Russia’s effort to justify its conduct that may have caused adverse effect upon the enjoyment
of human rights by members of two ethnic communities in Crimea, Crimean Tatars and ethnic
Ukrainians. Similar to what was done in the preceding section in respect of ‘national security’
and other aims that per se are recognized as legitimate under international human rights law, I
wish to quote how Russia in its Counter-Memorial invokes combating extremism as an
allegedly legitimate aim – recognized in its domestic law – that justifies restrictions on human
rights:
The decision at issue was adopted and upheld by the Russian courts in 2016,
following a thorough investigation and a series of warnings served on the Mejlis
and its members over the two preceding years. The decision of the Supreme
Court of the Republic of Crimea has been confirmed by the Supreme Court of
the Russian Federation, on the basis of a thorough and detailed reasoning that
confirmed the legitimate nature of the ban, which has nothing to do with racial
discrimination. The justification for the ban, that is to say the fight against
extremist activities that pose a threat to national security, to citizens’ rights,
public order and other legitimate considerations, is an objective and reasonable
ground that, moreover, reflects a general practice in all democratic States.28
32. At the outset, I wish to refer back to closing paragraphs 26 to 29 of the preceding
section, the conclusions of which would relate also to this kind of invocation of the notion of
‘extremism’: even if human rights intrusions justified as measures to counter extremism were
shown to meet all other requirements for permissible limitations, they would still need to be
27 See, e.g., Russia’s Counter-Memorial on the ICERD, paras. 98, 154-156, 161, 371-372.
28 Id., para. 133.
- 279 -
Russia's `purpose', `effect',
`security' `extremism' `extremism', `extremism': 29 `extremism' Russia's 1177
assessed separately as to whether they also are nondiscriminatory. As will be explained below,
my conclusion is that here Russia’s effort to justify its conduct independently fails for a
different reason, namely that its anti-extremism statute, or at least its extension to Crimea in
the context of the purported annexation of Crimea into the Russian Federation, in itself entails
a discriminatory ‘purpose’, or at least its application has resulted in discriminatory ‘effect’,
both equally incompatible with the ICERD.
33. As was noted in the preceding section, the concept of ‘national security’ is recognized
in international human rights law as a legitimate aim that may justify necessary and
proportionate restrictions upon many human rights, providing all other stringent requirements
for permissible limitations are met. In contrast, neither the ICCPR nor other human rights
treaties refer to countering ‘extremism’ as a legitimate aim that would justify restrictions on
human rights. There is a fundamental difference between countering terrorism and countering
‘extremism’, as there is a large number of international conventions and protocols that impose
upon States legal obligations in the field of counter-terrorism.29 The compatibility of any
human rights intrusive measures taken by States in the implementation of these obligations will
be assessed under the framework provided by human rights treaties concerning permissible
limitations, most often but not exclusively by addressing their application under the recognized
legitimate aim of protecting national security and not by treating counter-terrorism itself as a
legitimate aim. In principle, the same might apply for national laws that base themselves on the
notion of ‘extremism’: they and their application would also need to be assessed under the
framework of permissible limitations to human rights. Because of the absence of underlying
29 Notably, the Shanghai Convention, to which the Russian Federation is a party, is not an
instrument comparable to global conventions and protocols against terrorism. See SCO,
Shanghai Convention on Combating Terrorism, Extremism and Separatism (entered into force
29 March 2003). It is of regional nature and primarily related to extradition and other forms of
mutual cooperation between the Parties. Further, its definition of ‘extremism’ is clearly more
narrow than the one found in Russia’s anti-extremism statute. See id., art. 1(1)(3).
- 280 -
`extremism' `extremism' `extremism' `terrorism'`terrorism'.`extremism' State's `extremism' States'
3° 31 1188
international obligations of wide global acceptance, national anti-extremism laws, however,
require even closer human rights scrutiny than counter-terrorism laws, and not only for their
practical application in individual cases but also as to their abstract compatibility with
international human rights law. International treaty monitoring bodies will need to assess both
the framework of a national anti-extremism statute and its practical application as to whether
they represent permissible limitations of human rights, or violations of them.
34. It is not my view that any national law, however formulated, that includes the notion of
‘extremism’ would, by definition, be incompatible with international human rights law, or that
every application of such national law in respect of a member of a non-dominant ethnic group
would automatically constitute racial discrimination. The word ‘extremism’ has gradually
made its way into international policy documents, usually in the qualified form of ‘violent
extremism’ or, as a more complete formulation, ‘violent extremism which can be conducive to
terrorism’30 or ‘violent extremism that can lead to terrorism’.31 What matters here is that
national laws on ‘extremism’ and their application must be subject to scrutiny as to whether
they genuinely and in a non-discriminatory manner contribute towards national security or
another objective recognized as a legitimate aim under human rights law, or whether their
actual purpose or their practical application is incompatible with human rights. In that context,
the main question under the ICERD will be whether a State’s reliance on a domestic piece of
legislation amounts to racial discrimination when the law in question targets the enjoyment of
human rights by persons belonging to non-dominant ethnic groups. As ‘extremism’ is a notion
that finds frequent application in situations of inter-ethnic tension or as a justification for States’
measures to counter protest by ethnic communities, the mere resorting to an anti-extremism
30 See U.N. Security Council Resolution No. 2178 on threats to international peace and security
caused by terrorist acts, S/RES/2178 (2014), para. 15 (internal punctuation omitted).
31 This notion is used, inter alia, by the United Nations Office on Drugs and Crime. See U.N.
Office on Drugs and Crime, UNODC Strategy 2021-2025, pp. 4, 11, & 21-22.
- 281 -
`purpose'
`effect' `Activities' Russia's Russia's
"extremism" "extremist" defmitions
32 Ukraine's 1199
law in a situation of ethnic tension may demonstrate the presence of a discriminatory ‘purpose’
or result in discriminatory ‘effect’ within the meaning of Article 1, paragraph 1, of ICERD.
35. I understand that this question is applicable to the current case. As I explain in greater
detail below, it is my conclusion that Federal Law No. 114-FZ of 25 July 2002 of the Russian
Federation ‘On Combating Extremist Activities’ (as subsequently amended), and a related
provision of the Criminal Code, Article 280.1, are not pieces of national legislation that would
serve the implementation of international obligations, for instance relating to counter-terrorism,
or that would otherwise enjoy legitimacy in the eyes of the international community. This
conclusion is supported by the many international human rights expert bodies that have
repeatedly expressed their serious concerns about the law when examining the law or practice
of the Russian Federation.
36. In June 2012, i.e., before Russia’s purported annexation of Crimea and the extension of
the application of the federal anti-extremism statute there, the European Commission for
Democracy through Law (the Venice Commission) published an extensive Opinion on Russia’s
anti-extremism law.32 This Opinion includes, inter alia, the following characterizations of the
statute:
[7] The broad interpretation of the notion of “extremism” by the enforcement
authorities, the increasing application of the Law in recent years and the
pressure it exerts on various circles within civil society, as well as alleged
human rights violations reported in this connection have raised concerns and
drawn criticism both in Russia and on the international level. . . .
[31] The Commission however has strong reservations about the inclusion of
certain activities under the list of “extremist” activities. Indeed, while some of
the definitions in Article 1 refer to notions that are relatively well defined in
other legislative acts of the Russian Federation, a number of other definitions
listed in Article 1 are too broad, lack clarity and may open the way to different
interpretations . . . .
[33] . . . The Commission underlines that advocacy of the right to selfdetermination
of peoples or peacefully advocating a different territorial
32 Venice Commission, Opinion on the Federal Law on Combating Extremist Activity of the
Russian Federation, No. 660/2011 (2012) (Ukraine’s Memorial, Annex 817).
- 282 -
person's
"violence". ("discord") "material". "documents" "activity" "suppression" .
Commission's "notions" "extremism", "actions",
"organisations" "materials" 33 2200
arrangement within a country are generally not considered to be criminal
actions, and may on the contrary be seen as a legitimate expression of a person’s
views. . . .
[35] Extremist activity under point 3 is defined in a less precise manner than in
a previous version of the Law (2002). In the 2002 Law the conduct, in order to
fall within the definition, had to be “associated with violence or calls to
violence”. However the current definition (“stirring up of social, racial, ethnic
or religious discord”) does not require violence as the reference to it has been
removed. . . .
[39] It therefore appears that under the extremist activity in point 4, not only
religious extremism involving violence but also the protected expressions of
freedom of conscience and religion may lead to the application of preventive
and corrective measures. This seems to be confirmed by worrying reports of
extensive scrutiny measures of religious literature having led, in recent years, to
the qualification of numerous religious texts as “extremist material”. . . .
[49] Considering the broad and rather imprecise definition of “extremist
documents” (Article 1.3), the Venice Commission is concerned about the
absence of any criteria and any indication in the Law on how documents may
be classified as extremist and believes that this has the potential to open the way
to arbitrariness and abuse. . . .
[50] The definition of an extremist organisation contained in Article 1.2 is
circular. . . .
[66] Article 16 of the Extremism law prohibits extremist activity during the
holding of assemblies. Apart from the difficulties that arise in relation to the
definition of “extremist activity” addressed above, this article imposes on
organisers of assemblies the obligation of the “timely suppression” of any
extremist activity. The article also imposes obligations and liabilities on
organisers of an assembly to take steps to eliminate the involvement of extremist
organisations, use of their symbols or emblems and the dissemination of
extremist materials. Failure to do so shall involve the halting of the
assembly. . . [74] . . . [T]he manner in which this aim is pursued in the Extremism Law is
problematic. In the Commission’s view, the Extremism Law, on account of its
broad and imprecise wording, particularly insofar as the “basic notions” defined
by the Law - such as the definition of “extremism”, “extremist actions”,
“extremist organisations” or “extremist materials” - are concerned, gives too
wide discretion in its interpretation and application, thus leading to
arbitrariness.33
33 Id., paras. 7, 31, 33, 35, 39, 49, 50, 66 & 74.
- 283 -
Russia's
`origin', `discord' person's `religion'.defmitions `organisation' `materials'
Ip]ublic Federation'.`Activities' Ukraine's 35 36 `Federation' Ukraine's 2211
37. These several critical remarks are non-exhaustive examples of expressions of concern
by the Venice Commission which is only one of the expert bodies that have criticized Russia’s
anti-extremism statute. What is most relevant in the context of the current case, is that the text
of the statute itself, and of the related Article 280.1 of the Criminal Code, carry clear signs of
the purported or enabled use of the framework of this Russian federal statute to target groups
characterized by their ‘race, colour, descent, or national or ethnic origin’, to use the language
of ICERD Article 1, paragraph 1. The definition of extremist activity in Article 1(1) of the antiextremism
statute includes the ‘stirring up of social, racial, ethnic or religious discord’ or
certain (impermissible) actions or expressions related to a person’s ‘social, racial, ethnic,
religious or linguistic affiliation or attitude to religion’.34 This provision is followed in Article
1(2) and (3), by, respectively, definitions of ‘extremist organisation’ and ‘extremist materials’
which build upon the preceding definition of extremist activity.35
38. In December 2013, on the eve of the purported annexation of Crimea, Article 280.1 of
the Criminal Code was amended to include the crime of ‘[p]ublic calls to carry out actions
aimed at violating the territorial integrity of the Russian Federation’.36 Subsequently, in 2014,
the territorial scope of application of both the anti-extremism statute and Article 280.1 of the
Criminal Code was extended to include Crimea, as part of its purported annexation into the
Russian Federation. These statutes were imposed upon the inhabitants of Crimea, including
upon persons belonging to the distinct ethnic communities of Crimean Tatars and ethnic
Ukrainians in Crimea. While many Russian-speakers or persons with a Russian ethnic identity
may have felt loyalty towards Ukraine, even more so members of the Ukrainian ethnic
34 Russian Federation, Federal Law No. 114-FZ of 25 July 2002, ‘On Combating Extremist
Activities’ (Ukraine’s Memorial, Annex 876), art. 1(1).
35 Id., arts. 1(2)-(3).
36 Russian Federation, Federal Law No. 433-FZ of 28 December 2013, ‘On Amendments to
the Criminal Code of the Russian Federation’ (Ukraine’s Reply, Annex 94).
- 284 -
Russia's `Federation' `integrity') defmition `purpose' `broad', `extremist' `citizens'.Russia's 37 `"Activity"' `Federation' `Federation' Ukraine's 38 Ukraine's 2222
community and of the Crimean Tatars in Crimea would naturally have had a moral obligation
of loyalty towards Ukraine. The December 2013 amendment of the Criminal Code, together
with the purported annexation, effectively made it a crime to publicly state that Crimea is a part
of the internationally recognized territory of Ukraine, a reaction that Russia’s purported
annexation of Crimea would legitimately trigger among many inhabitants of Crimea and
particularly members of the two ethnic communities of Crimean Tatars and ethnic Ukrainians
in Crimea. The December 2013 amendment, along with the inclusion of ‘actions aimed at
violating the integrity of the Russian Federation’ (later rephrased to include the phrase
‘territorial integrity’) as part of the definition of extremist activity in the anti-extremism law,37
provide further support to an assessment that those statutes themselves, or at least their
extension to include Crimea and its inhabitants, demonstrate a discriminatory ‘purpose’ in the
meaning of ICERD Article 1, paragraph 1. Again, it is worth recalling that even in the absence
of such a purpose, mere discriminatory effect would equally amount to a breach of the ICERD.
39. In its 2017 Concluding Observations, when considering a periodic report by the Russian
Federation, the CERD Committee explicitly addressed the anti-extremism law of the Russian
Federation and identified it as a framework that may result in breaches of the ICERD: the law
was characterized as ‘vague and broad’, as lacking ‘clear and precise criteria on how materials
may be classified as extremist’ and as containing broad definitions that could ‘be used
arbitrarily to silence individuals, in particular those belonging to groups vulnerable to
discrimination, such as ethnic minorities, indigenous peoples or non-citizens’.38 This
assessment under the ICERD of Russia’s anti-extremism law provides further support to
37 Russian Federation, Federal Law No. 299-FZ of 31 July 2020, ‘On Amendments to Article
1 of the Federal Law “On Counteracting Extremist Activity”’ (replacing the phrase ‘violating
the integrity of the Russian Federation’ with ‘violating the territorial integrity of the Russian
Federation’ (emphasis added)) (Ukraine’s Reply, Annex 95).
38 CERD Committee, Concluding Observations on the Russian Federation,
CERD/C/RUS/CO/23-24 (20 September 2017) (Ukraine’s Memorial, Annex 804), para. 11.
- 285 -
"activity" Jehovah's
Russia's violation 40 `extremism' Russia's 39 Russia's 4° 2233
conclude that, since 2014, the law had become a tool for suppressing protest and dissent by
Crimean Tatars and members of the Ukrainian ethnic community in Crimea.
40. When in 2015 dealing with a periodic report under the ICCPR by the Russian
Federation, the Human Rights Committee explicitly referred to Crimea when assessing the antiextremism
law, as follows:
The Committee remains concerned (see CCPR/C/RUS/CO/6 and Corr.1, para.
25, and CCPR/CO/79/RUS, para. 20) that the vague and open-ended definition
of “extremist activity” in the Federal Law on Combating Extremist Activity
does not require any element of violence or hatred to be present and that no clear
and precise criteria on how materials may be classified as extremist are provided
in the law. The Committee expresses concern about numerous reports indicating
that the law is increasingly used to curtail freedom of expression, including
political dissent, and freedom of religion, targeting, inter alia, Jehovah’s
Witnesses. It also expresses concern at the adverse impact of the July 2014
amendment to the Criminal Code (art. 280.1) introducing the offence of public
calls for action aimed at violating the territorial integrity of the State and at
reports that the law has been applied, for example, against the editor-in chief of
the Crimean Tatar Avdet newspaper (arts. 2, 9, 18, 19 and 26).39
41. There is a large number of cases where the European Court of Human Rights has dealt
with individual complaints related to the application of Russia’s anti-extremism statute.
Notably, violations of the ECHR have been established in more than three dozen cases under
ECHR Articles 8 to 11, i.e., the provisions that include permissible limitations clauses, with no
judgment finding an absence of violation.40 The Court has steered clear of pronouncing that
‘combating extremism’ in the meaning of Russia’s anti-extremism statute would meet the
39 HRC, Concluding Observations Report Regarding Russia’s Compliance with the ICCPR,
CCPR/C/RUS/CO/7 (28 April 2015), para. 20.
40 See, e.g., Mukhin v. Russia, ECtHR App. No. 3642/10, Judgment (Merits) (14 December
2021) (finding a violation of ECHR Art. 10 on the freedom of expression); Yefimov & Youth
Human Rights Group v. Russia, ECtHR App. Nos. 12385/15 & 51619/15, Judgment (Merits)
(7 December 2021) (finding a violation of ECHR Art. 11 on the freedom of assembly and
association); Ibragim Ibragimov and Others v. Russia, ECtHR App. Nos. 1413/08 &
28621/11, Judgment (Merits) (28 August 2018) (finding a violation of ECHR Art. 10).
- 286 -
Russia's `law' `aim' `society' 41 `"law" aim').
42 Russia's `applicant's case' `ECHR]'); `overlaps' applicant's `applicant's 10] ' Russia's 43 ECtIIR' s `law'); `"law" aim').
44 Ukraine's 2244
ECHR requirement of legitimate aim for permissible limitations.41 The Court has rejected
Russia’s preliminary objections that individual complaints should be declared inadmissible on
account of Article 17 of the ECHR as abuse of rights because of the applicant having engaged
in activity aimed at the destruction of human rights.42 Notably, that provision has been applied
in several cases concerning counter-terrorism measures by other countries. The Court has
avoided statements that would have implied that the anti-extremism statute meets the ‘provided
by law’ or ‘legitimate aim’ requirements for permissible limitations and has instead usually
made its findings of a violation of the ECHR directly under the ‘necessary in a democratic
society’ requirement.43
42. I understand that Ukraine alleges that the Russian Federation has used its antiextremism
statute to discriminate against Crimean Tatars and ethnic Ukrainians in Crimea in
numerous aspects of public life, ranging from public safety, through political expression and
police searches and detentions, to the right to gather in public, freedom of media, cultural
preservation and education.44
41 See, e.g., Yefimov, para. 74 (holding that its ‘finding that the interference was not
“prescribed by law” dispenses the [ECtHR] from examining whether it also pursued a
legitimate aim’).
42 See Mukhin, paras. 81-84 (finding that Russia’s characterization of certain materials as
extremist was insufficient to implicate Art. 17, and that it was ‘not immediately clear that the
applicant’s editorial choices in the present case’ constituted a use of his right to freedom of
expression ‘for ends clearly contrary to the values of the [ECHR]’); Ibragimov, paras. 61-63
& 123-124 (finding that the decisive point under ECHR Art. 17 ‘overlaps’ with the question
of necessity as to the interference with the applicant’s rights, such that the question of
whether Art. 17 applies ‘must be joined to the merits of the applicant’s complaints under
[Arts. 9 & 10]’ and ultimately rejecting Russia’s preliminary objection under Art. 17, having
found a violation of Art. 10).
43 See, e.g., Mukhin, paras. 112 & 146 (finding that, in view of the ECtHR’s holding that the
challenged interference was not necessary in a democratic society, there was no need to
analyze whether the interference was ‘prescribed by law’); Yefimov, para. 74 (holding that its
‘finding that the interference was not “prescribed by law” dispenses the [ECtHR] from
examining whether it also pursued a legitimate aim’).
44 See, e.g., Ukraine’s Memorial, paras. 385-388.
- 287 -
Russia's `Activities', Russia's `origin', `affiliation' `purpose' 45 `Activities' Ukraine's 2255
43. My conclusion is that Russia’s Federal Law No. 114-FZ of 25 July 2002 (as
subsequently amended) ‘On Combating Extremist Activities’, and Article 280.1 of the
Criminal Code, together with their extension to Crimea in 2014, should not enjoy the benefit
of being treated as a neutral legal framework which is being applied in good faith to the benefit
of good order. Instead, the statutes should be regarded as suspect, due to their inherent features
that make them into a mechanism for targeting not only violent or dangerous actions but also
any mobilization or activity of ethnic communities that could be perceived to indicate
disloyalty to the central government. This conclusion is based on studying the arguments made
by the Parties and my experience, including in assessing the counter-terrorism law of numerous
countries, and on the above reported highly critical remarks by the Venice Commission, CERD
and Human Rights Committee, as well as the case law of the European Court of Human Rights,
concerning Russia’s anti-extremism statute.
44. Article 1 of the anti-extremism law carries clear signs of the intended or likely use of
its framework to target with adverse effect groups characterized by their ‘race, colour, descent,
or national or ethnic origin’, in breach of Article 1 of ICERD. For example, the vague
references to ‘social, racial, ethnic, religious or linguistic affiliation’ in the definition of
extremist activity45 are formulated in a manner that represents intended or at least likely
application of the clauses to restrict the peaceful ways through which groups based on their
ethnic origin express their ethnic identity and their commitment to maintaining it.
45. The intensity with which the Russian Federation has relied on Article 280.1 of the
Criminal Code and the anti-extremism law to execute the annexation of Crimea into the Russian
Federation, despite local opposition and protest by the ethnic communities of Crimean Tatars
and ethnic Ukrainians there, is suggestive of a ‘purpose’ that is incompatible with the ICERD
45 Russian Federation, Federal Law No. 114-FZ of 25 July 2002, ‘On Combating Extremist
Activities’ (Ukraine’s Memorial, Annex 876), art. 1(1).
- 288 -
`effect'. Code's — — Russia's `distinction'Russia's Russia's Enge1.47 people's 46 Russia's 47 Russia's 2266
and equally of discriminatory ‘effect’. In the context of the purported annexation of Crimea,
the statutes, their geographical extension to Crimea and the Criminal Code’s amendments in
2013 entail the use of the framework of the 2002 anti-extremism statute as an instrument of the
purported annexation of Crimea and of the consolidation of power into the hands of Russian
Federal authorities and their eventual local supporters. The statute allows subjecting ethnic
communities deemed disloyal – since 2014 the Crimean Tatars and ethnic Ukrainians – to harsh
administrative and penal measures, including for actions that do not involve the use of violence
or the commission of any underlying crime.
46. The argument presented in Russia’s Counter-Memorial that conduct by Mejlis leaders
‘undoubtedly meet the criteria of extremism that are uniformly applied by the [Russian]
Supreme Court in all cases without distinction’46 is irrelevant if the anti-extremism statute is
inherently discriminatory, or at least allows for its discriminatory application by targeting
groups based on their ethnic origin, or targeting their members, for anti-extremism measures
because the criteria for its application are discriminatory or allow for discriminatory
application.
47. An effort to justify the approach and application of Russia’s anti-extremism statute is
made in Annex 22 of Russia’s Counter-Memorial, written by Mr. Valery V. Engel.47 This
document does not demonstrate that the statute would serve a legitimate aim or that the benefit
obtained through its application towards a legitimate aim would have been proportionate in
comparison to the degree of resulting intrusions into people’s substantive human rights.
Moreover, the document does not dispel the above conclusion that the statute carries clear signs
of the intended or foreseen use of its framework to target with adverse effect groups
46 Russia’s Counter-Memorial on the ICERD, para. 179.
47 Expert Report of Valery Viktorovich Engel (21 June 2021), Russia’s Counter-Memorial on
the ICERD, Annex 22.
- 289 -
`origin', `interests', `groups' .48
`priorities', crimes." Russia's 5° Russia's `[offences' .51 person's Russia's 48 Id, 49 5° 51 2277
characterized by their ‘race, colour, descent, or national or ethnic origin’, in breach of Article
1 of ICERD. Instead, the document explicitly advocates for a ‘choice between democratic
values and security interests’, with the suggestion that the only right choice is ‘to temporarily
strengthen special measures to counter extremism and control the activities of radical groups’.48
The document also makes a suggestion that choosing, instead, to prioritize democratic liberal
values, paraphrased as ‘setting different value priorities’, would lead to the growth of extremist
sentiments and extremist crimes.49 Further, the document claims that other countries would
have failed in countering extremism, and that a liberalization of Russia’s anti-extremism law
would have negative consequences.50 These statements are highly contentious and also
speculative. Notably, the author makes clear that in Crimea, Russia’s anti-extremism law has
concerned Crimean Tatars in particular but then seeks to dispel any issue of discrimination with
an incorrect statement that ‘[t]hey also become defendants in criminal or administrative cases,
including under anti-extremist articles, only if they commit relevant offences’.51 The provisions
of the anti-extremism statute and their application, however, are often preventive and forwardlooking
in nature and do not require that any crime has been committed. The quoted sentence
therefore not only is factually incorrect, but it also appears incompatible with human rights. Its
author appears to suggest that mere suspicion by authorities could define a person’s conduct as
criminal in the application of the statute. This suggested interpretation of the statute in fact
further supports the hypothesis of a discriminatory purpose, rather than excluding that
possibility.
48. In my assessment Russia’s federal anti-extremism statute of 2002 and the related
Article 280.1 of the Criminal Code may in themselves represent a discriminatory purpose. That
48 Id., para. 464 (emphasis omitted).
49 Id., para. 465.
50 Id., paras. 474-475.
51 Id., para. 479.
- 290 -
Russia's Russia's Ukraine's 2288
is because they can be applied anywhere within the Russian Federation to target groups, based
on their ethnic or national origin, that are perceived by the central authorities of the Russian
Federation as potentially disloyal to Russia. There is, however, no need for pronouncing such
a general conclusion in the current case. Instead, my conclusion is that irrespective of whether
such an overall discriminatory purpose of the statutes themselves can be established, at least in
the context of Russia’s purported annexation of Crimea, extending the application of the antiextremism
statute and Article 280.1 of the Criminal Code to Crimea appears to have a
discriminatory purpose in respect of the two ethnic communities of the Crimean Tatars in
Crimea and ethnic Ukrainians in Crimea. For that reason alone, Russia’s conduct addressed
through the claims presented by Ukraine in the current case would entail a breach of its
obligations under the ICERD Convention. Should the presence of a discriminatory purpose not
be established, a breach of the ICERD could in any case be established because of the
discriminatory effect the application of the anti-extremism statute has had upon the enjoyment
and exercise of human rights by the members of the two ethnic communities of Crimean Tatars
and ethnic Ukrainians in Crimea.
49. Notably often, the Russian Federation has not disputed the factual claims by Ukraine
but has, instead, relied on its anti-extremism statute as if it would preclude the existence of
racial discrimination. In light of the materials examined for this report, however, the application
of the anti-extremism statute in Crimea in the context of the purported annexation of a part of
Ukraine’s internationally recognized territory, and in respect of members of the two ethnic
communities of Crimean Tatars and ethnic Ukrainians in Crimea, should be taken as proof of,
and admission of, the presence of a discriminatory purpose or effect in the meaning of ICERD
Article 1, paragraph 1, and therefore of a breach of the obligations of the Russian Federation
as a party to this treaty.
- 291 -
VI. Declaration by the Expert
50. I confirm that all the matters in respect to which I expressed my opinion are within my
competence and professional knowledge. I understand that I have an obligation to assist the
International Court of Justice with resolving the matters covered by this Expert Report. I have
fulfilled my obligation and will continue to do so in future. I confirm that the conclusions in
this Expert Report are unbiased, objective and impartial; they were not led by the influence of
the proceedings, nor of any party thereto.
Signed in Florence, Italy, on 14 April 2022,
N Jc.et,. N
Martin Scheinin
Dr. iuris (Helsinki 1991), British Academy Global Professor,
Bonavero Institute of Human Rights, University of Oxford
29
- 292 -
Annex 8
Ministry of Interior of Ukraine Order No. 317 (14 April 2014)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 293 -
- 294 -
[Symbol of Ukraine]
THE MINISTRY OF INTERIOR OF UKRAINE
ORDER
14.04.2014 the city of Kyiv No. 317
On the establishment of
special police patrol units
of the Main Department of the Ministry of Interior
of Ukraine in the city of Kyiv
With the purpose of defending and protecting lives, rights, freedoms and legal
interests of citizens, society and the state from the criminal and other unlawful threats, and in
order to ensure civil order and civil security,
I ORDER:
1. To establish special police patrol units of the Main Department of the Ministry of
Interior of Ukraine in the city of Kyiv
2. To approve the personnel of units established based on this order (attached).
Minister [Signed] A.B. Avakov
Same as the original
Deputy Directors of Department -
Head of the Division
of Documentation of Official Activities
of the Ministry of Interior of Ukraine
10.12.2021 [Singed] Serhiy
Bachynskyi
[Stamp of the Ministry of Interior of Ukraine
Division of Recording of Service Activities]
- 295 -
APPROVED
Order of the Ministry of Interior of
Ukraine
of 14.04.2014 No. 317
PERSONNEL
of “Kyiv-2”, a special police patrol squadron
of the Main Department of the Ministry of Interior of Ukraine in the city of Kyiv
Name of the entity,
unit and position
Special rank
(personnel category)
Number of
positions
Pay Sources of
support,
other notes
Squadron commander Major of police,
Lieutenant Colonel of police
1 850-
970
Deputy squadron
commander
Captain of police,
Major of police
2 808-
922
Policeman Sergeant of police 97 580
100
[Signed] V.R. Slivinskyi
[Signed] M.G. Verbenskyi
[Signed] O.V. Takhtay
[Signed] S.V. Chernikov
- 296 -
[Symbol of Ukraine]
THE MINISTRY OF INTERIOR OF UKRAINE
ORDER
16.06.2014 the city of Kyiv No. 576
On organizational and personnel changes
in special police patrol units
With the purpose of defending and protecting lives, rights, freedoms and legal
interests of citizens, society and the state from the criminal and other unlawful threats, and in
order to ensure civil order and civil security,
I ORDER:
1. To reorganize:
1.1. The special police patrol squadron “Kyiv-2” of the Main Department of the
Ministry of Interior of Ukraine in the city of Kyiv into the special police patrol battalion
“Kyiv-2” of the Main Department of the Ministry of Interior of Ukraine in the city of Kyiv;
1.2. The special police patrol battalion “Luhansk-1” of the Main Department of the
Ministry of Interior of Ukraine in Dnipropetrovsk region into the special police patrol
squadron “Luhansk-1” of the Main Department of the Ministry of Interior of Ukraine in
Luhansk region;
1.3. The special police patrol battalion “Artemivsk” of the Main Department of the
Ministry of Interior of Ukraine in Dnipropetrovsk region into the special police patrol
squadron “Artemivsk” of the Main Department of the Ministry of Interior of Ukraine in
Dnipropetrovsk region;
1.4. The special police patrol battalion “Sicheslav” of the Main Department of the
Ministry of Interior of Ukraine in Dnipropetrovsk region into the special police patrol
squadron “Sicheslav” of the Main Department of the Ministry of Interior of Ukraine in
Dnipropetrovsk region;
1.5. The special police patrol battalion “Sumy” of the Main Department of the
Ministry of Interior of Ukraine in Sumy region into the special police patrol squadron
“Sumy” of the Main Department of the Ministry of Interior of Ukraine in Sumy region;
2. Dissolve the special police patrol battalion “Zoloti Vorota” of the Main Department
of the Ministry of Interior of Ukraine in the city of Kyiv.
3. Approve:
3.1. The personnel of special police patrol units (attached).
- 297 -
3.2. List of changes in the Ministry of Interior personnel (attached).
Minister [Signed] A.B. Avakov
Same as the original
Deputy Directors of Department -
Head of the Division
of Documentation of Official Activities
of the Ministry of Interior of Ukraine
10.12.2021 [Singed] Serhiy
Bachynskyi
[Stamp of the Ministry of Interior of Ukraine
Division of Recording of Service Activities]
- 298 -
Annex 9
Search and Seizure Report, drafted by Senior Lieutenant of Justice O.B.Butyrin,
Senior Investigator, Investigations Department of the Directorate of the Security
Service of Ukraine in the Kharkiv Region (16 November 2014)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 299 -
- 300 -
SEARCH AND SEIZE REPORT
the city of Kharkiv 16 November 2014
[. . .]
Senior Investigator of the Investigations Department, the Directorate of the Security Service of
Ukraine in the Kharkiv Region, senior lieutenant of justice O.V. Buturin, . . .
in presence of Maryna Anatolievna Kovtun born on 3 June 1967 (Kovtun uses the searched
premises for storage), and Artem Sergiyovych Mineev born on 9 July 1984, the owner of the
searched premises
carried out search and seizure in garage cooperative located near house No. 9 on Laputova
Street
[. . .]
- 301 -
2
THE SEARCH AND SEIZURE ESTABLISHED
- 302 -
3
[. . .]
5) Two bags of rectangular shape were discovered. In one bag two objects were retreated; in
other – one:
 Assault Kalashnikov – 74, 5.45 caliber, serial number “4292512” with grenade
launcher attached (GP-25) No. 982524
 AK-74, 5.45 caliber, serial number “3780057”;
 AK-74, 5.45 caliber, serial number “3759198”;
[. . .]
- 303 -
- 304 -
Annex 10
Report on Examination of Things Seized from Marina Kovtun, drafted by Senior
Lieutenant of Justice D.S. Gnatushko, Senior Investigator, Investigations
Department of the Directorate of the Security Service of Ukraine in the Kharkiv
Region (16 November 2014)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
- 305 -
- 306 -
1
REPORT ON EXAMINATION
of things
the city of Kharkiv 16 November 2014
[. . .]
Senior Investigator of the Investigations Department, the Directorate of the Security Service of
Ukraine in the Kharkiv Region, senior lieutenant of justice D.S. Gnatushko, . . .
carried out examination of things that were seized on 16 November 2014 during search of suspect
M.A. Kovtun who was arrested according to art. 208 of the Criminal Procedures Code of Ukraine.
[. . .]
EXAMINATION HAS DETERMINED
[. . .]
During the examination, things to be examined were unpacked. The following things were
recovered from the package:
- 307 -
2
[. . .]
- USB – thumb drive of black color. To examine the USB drive, it was connected to a
working PC using a USB cable. The USB drive of black color contains four folders,
including the folder named “000” (to preserve the content of the folder on the USB drive,
the instigator made a screenshot). The folder contains three electronic documents named
“MON-50,” “OZM-72, MON-50” and “Limpet mine” (to preserve the content of the folder
on the USB drive, the instigator made a screenshot). Content of these documents include
tactical and technical characteristics and instructions of how to deploy anti-personnel mines
MON-50, OZM-72, and “Limpet mine UMP.”
[. . .]
- 308 -
3
[. . .]
A video file 00023 of 66,1 MB is discovered in the folder
“PRIVATE\AVCHD\BDMV\STREAM” on a memory card that was created on 9 November
2014 at 22:51:48. The video file contains recoding showing a big gathering of people near the
Rock Pub Stena aftermath of the bombing attack and ambulance moving on Rymarskaya Street
towards the bar to provide first aid to injured.
A video file 00024 of 29,5 MB is discovered in the folder
“PRIVATE\AVCHD\BDMV\STREAM” on a memory card that was created on 9 November
2014 at 22:54:56. The video file contains recoding showing the consequences of the bombing
attack on the Rock Pub Stena and ambulance doctors providing medical assistance to injured, as
well as big gathering of people.
A video file 00025 of 21,6 MB is discovered in the folder
“PRIVATE\AVCHD\BDMV\STREAM” on a memory card that was created on 9 November
2014 at 22:54:56. The video file contains recoding of a firefighting car, ambulance, and big
gathering of people after the bombing attack on the Rock Pub Stena.
- 309 -
- 310 -
Annex 11
Report of Presentation of a Person for Identification by Photos, drafted by Major of
Justice O.S.Zagumennyi, Senior Investigator, Investigations Department of the
Directorate of the Security Service of Ukraine in the Kharkiv Region
(18 November 2014)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
- 311 -
- 312 -
1
REPORT
of presentation of a person for identification by photos
the city of Kharkiv 18 November 2014
Started at 18:20
Finished at 18:51
              
              
               
       
1. Dumenko Dmytro Sergiyovych, born on 21 November 1995, lives at the address: the
city of Kharkiv, 44 Tselinogradska, app. 96;
2. Glushchenko Maksym Sergiyovych, born on 15 March 1995, lives at the address: the
city of Kharkiv, 44 Tselinogradska, app. 96.
with the participation of the suspect Varva Mykola Vasylovych, born on 05 February 1955…
                  
                 
                 
CERTIFICATE
to the protocol of presentation of a person for identification by photos dated
18.11.2014
- 313 -
2
             
        
-              
- 314 -
Annex 12
Report of Presentation of a Person for Identification by Photos, drafted by Senior
Lieutenant of Justice O.B.Butyrin, Senior Investigator, Investigations Department
of the Directorate of the Security Service of Ukraine in the Kharkiv Region
(19 November 2014)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
- 315 -
- 316 -
REPORT
of Presentation of a Person for Identification by Photos
the city of Kharkiv 19 November 2014
[. . .]
. . . with participation of a suspect Kostiantyn Volodymyrovych Morev, born on 22 February 1974
. . . .
[. . .]
On photo No. 2 on page No. 4, he recognizes a person known to him under the name “Maryna.”
He recognized the person by her district futures like her haircut, face shape, and chin shape.
[. . .]
- 317 -
PHOTO BOOK
- 318 -
DESCRIPTION
of Photos Used During the Photographic Identification of a Person
of 19 November 2014
The table of photos used during identification on 19 November 2014 in the criminal investigation
No. 22014220000000283 includes:
[. . .]
- page No. 4, photo No. 2 depicts Maryna Anatolievna Kovtun born on 3 June 1967.
[. . .]
Individuals depicted on other photos have no relation to this criminal investigation.
- 319 -
- 320 -
Annex 13
Report of Presentation of a Person for Identification by Photos, drafted by Lieutenant
Colonel I.V.Mezionov, Special Investigator, Investigations Department of the
Directorate of the Security Service of Ukraine in the Kharkiv Region
(22 November 2014)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 321 -
- 322 -
REPORT
of Presentation of a Person for Identification by Photos
      
  
                   
  
              
              
               
                
            
                  
           
                 
      
- 323 -
PHOTO BOOK
- 324 -
DESCRIPTION
of Photos Used During the Photographic Identification of a Person
of 22 November 2014
              
            
     
           
- 325 -
- 326 -
Annex 14
Record of Review, drafted by O.V. Martyniuk, Senior Investigator of the Security
Service of Ukraine (16 January 2015)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 327 -
- 328 -
8
118
RECORD
of review
Donetsk January 16, 2015
Review started at: 11:25 AM January 16, 2015
Review ended at: 4:55 PM January 17, 2015
Senior investigator at the Internal Affairs Agency of the investigations department of the
Directorate of the Security Service of Ukraine in the Donetsk region Lt. Colonel Oleksiy
Volodymyrovych Martyniuk, having reviewed the materials of criminal proceedings No.
22015050000000021 entered into the Unified Register of Pre-trial Investigations of January 13, 2015, on
the grounds of commission of crimes as stipulated by part 3, article 258 of the CC of Ukraine, in
accordance with articles 104, 105, 106, 237, 223 of the CPC of Ukraine, conducted a review of the scene
(territory) located around the checkpoint of the Armed Forces of Ukraine on highway N-20 “Slov’yansk-
Mariupol,” located at the site of fixed post No. 5 UDAI GUMBS of Ukraine in the Donetsk area at the
exit from Volnovakha in the direction of Buhas of the Donetsk area in order to search for craters after an
attack on the checkpoint from a multiple rocket launcher system (MRLS) BM-21 “GRAD”, which took
place on January 13, 2015.
The review was conducted under daytime natural light using photos on a “Sony-Cyber-Shot”
camera with a 2 GB “Transcend” memory card with automatic settings.
The conduct of the review established:
The review started on the territory which is located to the right of the checkpoint (the eastern part
with respect to the “Slov’yansk-Mariupol” highway on the checkpoint site). In this case, the crater was
not reviewed that had been examined earlier and was closest to the checkpoint, near which on January 13,
2015 the shuttle bus “I-VAN A0718,” state license number AN0985AA, was hit by shrapnel on the road
from “Zlatoustivka to Donetsk,” killing 12 passengers and injuring 19. The crater is conditionally
designated as No. 1.
The following craters were also reviewed, (which were respectively numbered according to the
review schedule which is attached to the record):
No. 2: at a distance of 265 m from crater No. 1 along the “Slov’yansk-Mariupol” highway, along
the center divider (the crater reviewed with the removal of remnants of ammunitions according to the
review record of January 14, 2015);
No. 3: at a distance of 17 meters from crater No. 2 along the highway and 35 meters deep crater
found perpendicular to the road 25 x 22 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 115 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 4: at a distance of 29 meters from crater No. 3 in a direction perpendicular to the road a crater
was found that is 27 x 30 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 110 cm, penetrating the center of the crater towards the probable axis of entry of the metal
scrap shell, apparent approximate northeast direction;
No. 5: at a distance of 19 meters from crater No. 4 perpendicular to the road a crater was found
that is 25 x 25 cm wide (diameter at the intersection along the inner part), with a depth of approximately
110 cm, penetrating the center of the crater towards the probable axis of entry of the metal scrap shell,
apparent approximate northeast direction;
No. 6: No. 4: at a distance of 47 meters from crater No. 5 in a direction towards the road at an
angle of approximately 20° to the conventional line of the road in the direction of the plane towards
- 329 -
9
119
Volnovakha a crater was found that is 25 x 27 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 115 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 7: at a distance of 144 meters from crater No. 6 in a direction towards the road at an angle of
approximately 45° to the conventional line of the road in the direction of the plane towards Volnovakha a
crater was found that is 24 x 25 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 120 cm, penetrating the center of the crater towards the probable axis of entry of the
metal scrap shell, apparent approximate northeast direction;
No. 8: at a distance of 78 meters from crater No. 7 in a direction towards the road at an angle of
approximately 40° to the conventional line of the road in the direction of the plane towards Buhas a crater
was found that is 32 x 35 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 115 cm, penetrating the center of the crater towards the probable axis of entry of the metal
scrap shell, apparent approximate northeast direction;
No. 9: at a distance of 108 meters from crater No. 8 in a direction towards the road at an angle of
approximately 45° to the conventional line of the road in the direction of the plane towards Buhas a crater
was found that is 35 x 40 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 115 cm, penetrating the center of the crater towards the probable axis of entry of the metal
scrap shell, apparent approximate northeast direction;
No. 10: at a distance of 100 meters from crater No. 9 in a direction towards the road at an angle of
approximately 30° to the conventional line, perpendicular to the road in the direction of the plane towards
Buhas a crater was found that is 22 x 24 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 110 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 11: at a distance of 67 meters from crater No. 10 in a direction towards the road at an angle of
approximately 60° to the conventional line, parallel to the road in the direction of the plane towards
Buhas a crater was found that is 23 x 25 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 100 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 12: at a distance of 83 meters from crater No. 11 in a direction towards the road at an angle of
approximately 40° to the conventional line, perpendicular to the road in the direction of the plane towards
Volnovakha a crater was found that is 28 x 30 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 110 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 13: at a distance of 36 meters from crater No. 12 in a direction along the road in the direction
of the plane towards Buhas a crater was found that is 30 x 30 cm wide (diameter at the intersection along
the inner part), with a depth of approximately 115 cm, penetrating the center of the crater towards the
probable axis of entry of the metal scrap shell, apparent approximate northeast direction;
No. 14: at a distance of 38 meters from crater No. 13 in a direction towards the road at an angle of
approximately 30° to the conventional line, parallel to the road in the direction of the plane towards
Buhas a crater was found that is 32 x 35 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 110 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 15: at a distance of 31 meters from crater No. 14 in a direction towards the road at an angle of
approximately 25° to the conventional line, perpendicular to the road in the direction of the plane towards
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10
120
Volnovakha a crater was found that is 25 x 27 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 110 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 16: at a distance of 38 meters from crater No. 15 in a direction towards the road at an angle of
approximately 15° to the conventional line, perpendicular to the road in the direction of the plane towards
Volnovakha a crater was found that is 25 x 25 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 115 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 17: at a distance of 56 meters from crater No. 16 in a direction towards the road at an angle of
approximately 55° to the conventional line, parallel to the road in the direction of the plane towards
Buhas a crater was found that is 22 x 21 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 130 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 18: at a distance of 104 meters from crater No. 17 in a direction from the road at an angle of
approximately 35° to the conventional line, perpendicular to the road in the direction of the plane towards
Buhas a crater was found that is 25 x 24 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 120 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 19: at a distance of 25 meters from crater No. 18 in a direction from the road at an angle of
approximately 45° to the conventional line, perpendicular to the road in the direction of the plane towards
Volnovakha a crater was found that is 23 x 24 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 125 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 20: at a distance of 125 meters from crater No. 19 in a direction from the road at an angle of
approximately 30° to the conventional line, perpendicular to the road in the direction of the plane towards
Buhas a crater was found that is 21 x 22 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 120 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 21: at a distance of 75 meters from crater No. 20 in a direction towards the road at an angle of
approximately 45° to the conventional line, parallel to the road in the direction of the plane towards
Buhas a crater was found that is 25 x 23 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 120 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 22: at a distance of 82 meters from crater No. 21 in a direction from the road at an angle of
approximately 50° to the conventional line, parallel to the road in the direction of the plane towards
Buhas a crater was found that is 24 x 25 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 110 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 23: at a distance of 115 meters from crater No. 22 in a direction from the road at an angle of
approximately 15° to the conventional line, perpendicular to the road in the direction of the plane towards
Buhas a crater was found that is 25 x 25 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 55 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
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No. 24: at a distance of 145meters from crater No. 23 in a direction towards the road at an angle
of approximately 15° to the conventional line, perpendicular to the road in the direction of the plane
towards Buhas a crater was found that is 25 x 25 cm wide (diameter at the intersection along the inner
part), with a depth of approximately 115 cm, penetrating the center of the crater towards the probable axis
of entry of the metal scrap shell, apparent approximate northeast direction;
No. 25: at a distance of 100 meters from crater No. 25 in a direction towards the road at an angle
of approximately 20° to the conventional line, perpendicular to the road in the direction of the plane
towards Volnovakha a crater was found that is 22 x 21 cm wide (diameter at the intersection along the
inner part), with a depth of approximately 130 cm, penetrating the center of the crater towards the
probable axis of entry of the metal scrap shell, apparent approximate northeast direction;
No. 26: at a distance of 106 meters from crater No. 25 in a direction towards the road at an angle
of approximately 15° to the conventional line, parallel to the road in the direction of the plane towards
Buhas a crater was found that is 27 x 28 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 115 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 27: at a distance of 87 meters from crater No. 26 in a direction towards the road at an angle of
approximately 90° to the road, a crater was found that is 29 x 30 cm wide (diameter at the intersection
along the inner part), with a depth of approximately 120 cm, penetrating the center of the crater towards
the probable axis of entry of the metal scrap shell, apparent approximate northeast direction;
No. 28: at a distance of 45 meters from crater No. 26 in a direction from the road at an angle of
approximately 10° to the conventional line, parallel to the road in the direction of the plane towards
Buhas a crater was found that is 25 x 23 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 130 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 29: at a distance of 103 meters from crater No. 28 in a direction towards the road at an angle
of approximately 45° to the conventional line, parallel to the road in the direction of the plane towards
Buhas a crater was found that is 25 x 25 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 135 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 30: at a distance of 94 meters from crater No. 29 in a direction from the road at an angle of
approximately 40° to the conventional line, parallel to the road in the direction of the plane towards
Buhas a crater was found that is 17 x 20 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 130 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction;
No. 31: at a distance of 65 meters from crater No. 30 in a direction towards the road at an angle of
approximately 50° to the conventional line, perpendicular to the road in the direction of the plane towards
Buhas a crater was found that is 21 x 22 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 35 cm, penetrating the center of the crater towards the probable axis of entry of
the metal scrap shell, apparent approximate northeast direction; In this case, it was established that the
distance from the specified conventional boundary perpendicular to the highway sign “177th km” along
the highway is 65 meters.
No. 32: at a distance of 90 meters from crater No. 31 in a direction towards the road at an angle of
approximately 20° to the conventional line, perpendicular to the road in the direction of the plane towards
Volnovakha a crater was found that is 32 x 35 cm wide (diameter at the intersection along the inner part),
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with a depth of approximately 115 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 33: at a distance of 100 meters from crater No. 32 in a direction from the road at an angle of
approximately 30° to the conventional line, parallel to the road in the direction of the plane towards
Volnovakha a crater was found that is 35 x 35 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 125 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 34: at a distance of 107 meters from crater No. 33 in a direction towards the road at an angle
of approximately 35° to the conventional line, parallel to the road in the direction of the plane towards
Volnovakha a crater was found that is 28 x 30 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 105 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 35: at a distance of 12 meters from crater No. 34 in a direction towards the road at an angle of
approximately 40° to the conventional line, parallel to the road in the direction of the plane towards
Buhas, at a distance of 2.5 m to a tree with a number of green branches, planted along the road, and 12.5
meters from the edge of the roadway part of the road, a crater was found that is 20 x 22 cm wide
(diameter at the intersection along the inner part), with a depth of approximately 105 cm, penetrating the
center of the crater towards the probable axis of entry of the metal scrap shell, apparent approximate
northeast direction. Also on the specified tree there are fresh ragged wounds to the bark, at a height of 25
cm from the ground from the northeast side.
No. 36: at a distance of 132 meters from crater No. 34 in a direction towards the road at an angle
of approximately 10° to the conventional line, parallel to the road in the direction of the plane towards
Volnovakha a crater was found that is 29 x 30 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 35 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction.
No. 37: at a distance of 30 meters from crater No. 34 in a direction from the road at an angle of
approximately 30° to the conventional line, perpendicular to the road in the direction of the plane towards
Volnovakha a crater was found that is 23 x 24 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 115 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 38: at a distance of 80 meters from crater No. 36 in a direction from the road at an angle of
approximately 45° to the conventional line, perpendicular to the road in the direction of the plane towards
Volnovakha a crater was found that is 21 x 22 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 112 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 30: at a distance of 43 meters from crater No. 38 in a direction towards the road at an angle of
approximately 20° to the conventional line, perpendicular to the road in the direction of the plane towards
Volnovakha a crater was found that is 22 x 22 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 105 cm, penetrating the center of the crater towards the probable axis of
entry of the metal scrap shell, apparent approximate northeast direction;
No. 40: at a distance of 23 meters from crater No. 40 in a direction towards the road at an angle of
approximately 40° to the conventional line, parallel to the road in the direction of the plane towards
Volnovakha a crater was found that is 28 x 30 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 155 cm, penetrating the center of the crater towards the probable axis of
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entry of the metal scrap shell, apparent approximate northeast direction;
No. 41: at a distance of 15 meters along the conventional perpendicular to the road, an 67 meters
for the specified perpendicular in the direction from the checkpoint to the “DAI” “90” speed limit sign, a
crater was found that is 30 x 35 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 115 cm, penetrating the center of the crater towards the probable axis of entry of the
metal scrap shell, apparent approximate northeast direction;
No. 42: at a distance of 3 meters along the conventional boundary perpendicular to the roadway
part of the road, and 7 meters from the specified perpendicular in the direction from the checkpoint to
“DAI” “90” speed limit sign, a crater was found that is 30 x 40 cm wide (diameter at the intersection)
with a depth of approximately 20 cm.
The review is interrupted at 4:45 PM on January 16, 2016 and continued at 10:35 AM on
January 17, 2015.
The review continues from the territory which is located to the left of the checkpoint (western
part with respect to the “Slov’yansk-Mariupol” road on the site of the checkpoint). In this case, a crater
was found (with continuation of review numbering):
No. 43: at a distance of 630 meters along the road from the checkpoint in a direction from Buhas
and 2 meters from the roadside a crater was found that is 18 x 20 cm wide (diameter at the intersection
along the inner part), with a depth of approximately 65 cm, penetrating the center of the crater towards the
probable axis of entry of the metal scrap shell, apparent approximate northeast direction;
No. 44: at a distance of 160 meters from crater No. 43 along the road from the checkpoint in a
direction from Buhas and 10 meters from the “177th km” road sign exactly in the center of the roadway
from the direction of Buhas-Volnovakha, a crater is found in the asphalt that is 50 x 40 cm (diameter at
the intersection) with a depth of approximately 3-5 cm, behind the crater (from the northeast) there are
many chips in the asphalt. The narrowed part of the plane of the crater also travels in the same direction.
No. 45: at a distance of 150 meters from crater No. 44 along the road from the checkpoint in a
direction from Buhas and 15 meters from the roadside in the forest right of way a crater was found that is
35 x 45 cm wide (diameter at the intersection along the inner part), with a depth of approximately 35 cm;
No. 46: at a distance of 35 meters from crater No. 44 along the road to the checkpoint from
Volnovakha and 124 meters along the perpendicular from the roadside in a deep field a crater was found
that is 25 x 30 cm wide (diameter at the intersection along the inner part), with a depth of approximately
75 cm penetrating the center of the crater towards the probable axis of entry of the shell, a wooden rail,
apparent approximate northeast direction.
No. 47: at a distance of 5 meters from crater No. 43 along the road from the checkpoint in a
direction from Buhas and 55 meters along the perpendicular from the roadside in a deep field a crater was
found that is 27 x 30 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 100 cm, penetrating the center of the crater towards the probable axis of entry of the shell,
a wooden rail, apparent approximate northeast direction.
No. 48: at a distance of 10 meters from crater No. 47 in a direction from the road at an angle of
approximately 40° to the conventional boundary, parallel to the road, in the direction of the plane to
Volnovakha, a crater was found that is 20 x 22 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 90 cm, penetrating the center of the crater towards the probable axis of
entry of the shell, a wooden rail, apparent approximate northeast direction;
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No. 49: at a distance of 70 meters from crater No. 43 along the road to the checkpoint in the
direction of Volnovakha and 15 meters along the perpendicular from the roadside, in a deep field, 4
meters from a separate strip of forest between the fields, a crater was found that is 45 x 50 cm wide
(diameter at the intersection), with a depth of approximately 20 cm;
No. 50: at a distance of 5 meters from crater No. 49 in a western direction (from the road) along a
separate strip of forest between the fields and 7 meters from the strip of forest in a deep field along the
conventional boundary perpendicular, in the direction of the plane towards Volnovakha, a crater was
found that is 27 x 28 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 120 cm, penetrating the center of the crater towards the probable axis of entry of the shell,
a wooden rail, apparent approximate northeast direction;
No. 51: at a distance of 87 meters from crater No. 50 in a western direction (from the road) along
a separate strip of forest between the fields and 2 meters from the strip of forest in a deep field along the
conventional boundary perpendicular, in the direction of the plan to Volnovakha, a crater was found that
is 24 x 25 cm wide (diameter at the intersection along the inner part), with a depth of approximately 110
cm, penetrating the center of the crater towards the probable axis of entry of the shell, a wooden rail,
apparent approximate northeast direction;
No. 52: at a distance of 340 meters from crater No. 51 in a western direction (from the road)
along a separate strip of forest between the fields and 48 meters from the strip of forest in a deep field
along the conventional boundary perpendicular, in the direction of the plane to Volnovakha, a crater was
found that is 27 x 32 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 105 cm, penetrating the center of the crater towards the probable axis of entry of the shell,
a wooden rail, apparent approximate northeast direction;
No. 53: at a distance of 218 meters from crater No. 52 in the direction of the road from an angle
of 40° to the conventional boundary, parallel to a separate strip of forest between the fields in the
direction of the plane to Volnovakha, a crater was found that is 25 x 26 cm wide (diameter at the
intersection along the inner part), with a depth of approximately 125 cm, penetrating the center of the
crater towards the probable axis of entry of the shell, a wooden rail, apparent approximate northeast
direction;
No. 54: at a distance of 21 meters from crater 53 parallel to the road in the direction of the plane
to Volnovakha, a crater was found that is 25 x 26 cm wide (diameter at the intersection along the inner
part), with a depth of approximately 125 cm, penetrating the center of the crater towards the probable axis
of entry of the shell, a wooden rail, apparent approximate northeast direction;
No. 55: at a distance of 68 meters from crater No. 54 at an angle of 15° to the conventional
boundary, parallel to the road in the direction of the plane to Volnovakha, a crater was found that is 24 x
25 cm wide (diameter at the intersection along the inner part), with a depth of approximately 130 cm,
penetrating the center of the crater towards the probable axis of entry of the shell, a wooden rail, apparent
approximate northeast direction;
No. 56: at a distance of 122 meters from crater No. 55 in the direction of the road at an angle of
25° to the conventional boundary, parallel to a separate strip of forest between the fields in the direction
of the plane to Volnovakha, a crater was found that is 27 x 25 cm wide (diameter at the intersection along
the inner part), with a depth of approximately 115 cm, penetrating the center of the crater towards the
probable axis of entry of the shell, a wooden rail, apparent approximate northeast direction;
No. 57: at a distance of 30 meters from crater No. 56 in the direction of the road at an angle of
30° to the conventional boundary, parallel to a separate strip of forest between the fields in the direction
of the plane to Volnovakha, a crater was found that is 25 x 26 cm wide (diameter at the intersection along
the inner part), with a depth of approximately 120 cm, penetrating the center of the crater towards the
probable axis of entry of the shell, a wooden rail, apparent approximate northeast direction;
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No. 58: at a distance of 70 meters from crater No. 57 in the direction of the road at an angle of
30° to the conventional boundary, parallel to a separate strip of forest between the fields in the direction
of the plane to Volnovakha, as well as at a distance of 70 meters closer to the checkpoint of the strip of
forest, a was found that is 22 x 24 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 130 cm, penetrating the center of the crater towards the probable axis of entry of the
shell, a wooden rail, apparent approximate northeast direction;
No. 59: at a distance of 68 meters from crater No. 58 and 45 meters along the conventional
boundary perpendicular from the strip of forest, nearer to the checkpoint, in a deep field in the direction of
the plane to Buhas, a crater was found that is 26 x 27 cm wide (diameter at the intersection along the inner
part), with a depth of approximately 130 cm, penetrating the center of the crater towards the probable axis
of entry of the shell, a wooden rail, apparent approximate northeast direction;
No. 60: at a distance of 60 meters from crater No. 56 in the direction of the road at an angle of
25° to the conventional boundary, perpendicular to the separate strip of forest, nearer to the checkpoint, in
a deep field in the direction of the plane to Buhas, a crater was found that is 23 x 25 cm wide (diameter at
the intersection along the inner part), with a depth of approximately 132 cm, penetrating the center of the
crater towards the probable axis of entry of the shell, a wooden rail, apparent approximate northeast
direction;
No. 61: at a distance of 105 meters from crater No. 60 in the direction from the road at an angle
of 10° to the conventional boundary, parallel to the road, in the direction of the plane to Buhas, and at a
distance of 39 meters from the strip of forest farthest from the checkpoint, a crater was found that is 23 x
21 cm wide (diameter at the intersection along the inner part), with a depth of approximately 110 cm,
penetrating the center of the crater towards the probable axis of entry of the shell, a wooden rail, apparent
approximate northeast direction;
No. 62: at a distance of 135 meters from crater No. 61 in the direction to the road at an angle of
15° to the conventional boundary, parallel to the strip of forest, in the direction of the plane to
Volnovakha, a crater was found that is 20 x 19 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 100 cm, penetrating the center of the crater towards the probable axis of
entry of the shell, a wooden rail, apparent approximate northeast direction;
No. 63: at a distance of 36 meters from crater 62 in the direction to the road at an angle of 15° to
the conventional boundary, parallel to the strip of forest, in the direction of the plane to Volnovakha, a
crater was found that is 22 x 24 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 110 cm, penetrating the center of the crater towards the probable axis of entry of the
shell, a wooden rail, apparent approximate northeast direction;
No. 64: at a distance of 25 meters from crater No. 63 in a direction perpendicular to the road, a
crater was found that is 25 x 24 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 120 cm, penetrating the center of the crater towards the probable axis of entry of the
shell, a wooden rail, apparent approximate northeast direction;
No. 65: at a distance of 46 meters from crater No. 63 in a direction parallel to the road in the
direction of the plane to Volnovakha, a crater was found that is 21 x 22 cm wide (diameter at the
intersection along the inner part), with a depth of approximately 115 cm, penetrating the center of the
crater towards the probable axis of entry of the shell, a wooden rail, apparent approximate northeast
direction;
No. 66: at a distance of 20 meters from crater No. 65 in a direction perpendicular to the road, a
crater was found that is 22 x 22 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 55 cm, penetrating the center of the crater towards the probable axis of entry of the
shell, a wooden rail, apparent approximate northeast direction;
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No. 67: at a distance of 94 meters from crater No. 66 in a direction to the road at an angle of 29°
to the conventional boundary, parallel to the road, in the direction of the plane to Volnovakha, a crater
was found that is 23 x 24 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 130 cm, penetrating the center of the crater towards the probable axis of entry of the shell,
a wooden rail, apparent approximate northeast direction;
No. 68: at a distance of 95 meters from crater No. 67 in the direction from the road at an angle of
45° to the conventional boundary, parallel to the road, in the direction of the plane to Volnovakha, a crater
was found that is 21 x 20 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 115 cm, penetrating the center of the crater towards the probable axis of entry of the shell,
a wooden rail, apparent approximate northeast direction;
No. 69: at a distance of 9 meters from crater No. 68 in a direction to the road at an angle of 30° to
the conventional boundary, parallel to the road, in the direction of the plane to Volnovakha, and at a
distance of 77 meters along the perpendicular to the strip of forest nearest to the checkpoint, a crater was
found that is 20 x 19 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 120 cm, penetrating the center of the crater towards the probable axis of entry of the shell,
a wooden rail, apparent approximate northeast direction;
No. 70: at a distance of 29 meters from crater No. 68 in a direction to the road at an angle of 50°
to the conventional boundary, parallel to the road, in the direction of the plane to Buhas, a crater was
found that is 20 x 21 cm wide (diameter at the intersection along the inner part), with a depth of
approximately 95 cm, penetrating the center of the crater towards the probable axis of entry of the shell, a
wooden rail, apparent approximate northeast direction;
No. 71: at a distance of 25 meters from crater No. 70 in a direction to the road at an angle of 20°
to the conventional boundary, perpendicular to the road, in the direction of the plane to Volnovakha, a
crater was found that is 22 x 23 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 105 cm, penetrating the center of the crater towards the probable axis of entry of the
shell, a wooden rail, apparent approximate northeast direction;
No. 72: at a distance of 80 meters from crater No. 69 in the direction of the road and along a strip
of forest nearest to the checkpoint, in the direction of the road, at 2 meters to the specified strip of forest, a
crater was found that is 25 x 24 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 95 cm, penetrating the center of the crater towards the probable axis of entry of the
shell, a wooden rail, apparent approximate northeast direction;
No. 73: at a distance of 34 meters from the road and 7 meters along the road towards the
checkpoint to the “DAI 90” road sign, a crater was found that is 21 x 21 cm wide (diameter at the
intersection along the inner part), with a depth of approximately 120 cm, penetrating the center of the
crater towards the probable axis of entry of the shell, a wooden rail, apparent approximate northeast
direction;
No. 74: at a distance of 12 meters from crater No. 73 parallel to the road in a direction from the
checkpoint, a crater was found that is 20 x 18 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 115 cm, penetrating the center of the crater towards the probable axis of
entry of the shell, a wooden rail, apparent approximate northeast direction;
No. 75: at a distance of 10 meters from the road and 9 meters along the road in a direction from
the checkpoint to the “DAI 90” road sign, a crater was found that is 19 x 20 cm wide (diameter at the
intersection along the inner part), with a depth of approximately 95 cm, penetrating the center of the
crater towards the probable axis of entry of the shell, a wooden rail, apparent approximate northeast
direction;
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No. 76: at a distance of 50 meters from crater No. 75 parallel to the road in the direction of the
checkpoint and 8 meters from the road, in a strip of forest along the road, a crater was found that is 24 x
22 cm wide (diameter at the intersection along the inner part), with a depth of approximately 125 cm,
penetrating the center of the crater towards the probable axis of entry of the shell, a wooden rail, apparent
approximate northeast direction;
No. 77: at a distance of 15 meters from crater No. 76 parallel to the road in the direction of the
checkpoint and 8 meters from the road, in a strip of forest along the road, a crater was found that is 20 x
22 cm wide (diameter at the intersection along the inner part), with a depth of approximately 110 cm,
penetrating the center of the crater towards the probable axis of entry of the shell, a wooden rail, apparent
approximate northeast direction;
No. 78: at a distance of 28 meters from crater No. 76 perpendicularly from the road and 63 meters
perpendicularly to a strip of forest nearest to the check point, a crater was found that is 19 x 20 cm wide
(diameter at the intersection along the inner part), with a depth of approximately 130 cm, penetrating the
center of the crater towards the probable axis of entry of the shell, a wooden rail, apparent approximate
northeast direction;
No. 79: at a distance of 200 meters along the road from crater No. 1, in a strip of forest along the
road, a crater was found that is 20 x 22 cm wide (diameter at the intersection along the inner part), with a
depth of approximately 95 cm, penetrating the center of the crater towards the probable axis of entry of
the shell, a wooden rail, apparent approximate northeast direction;
No. 80: at a distance of 55 meters from crater No. 79 in a direction along the road in the direction
of the checkpoint, in a strip of forest along the road, a crater was found that is 22 x 23 cm wide (diameter
at the intersection along the inner part), with a depth of approximately 105 cm, penetrating the center of
the crater towards the probable axis of entry of the shell, a wooden rail, apparent approximate northeast
direction;
Furthermore, the territory was examined which is located to the left of the checkpoint
(southwestern part with respect to the “Slov’yansk-Mariupol” road at the site of the checkpoint) behind a
strip of forest (in the direction of the review towards the checkpoint), which separates the field from the
craters found above, and in this case the craters found:
No. 81: at a distance of 110 meters from the checkpoint and 25 meters from the strip of forest, a
crater was found that is 21 x 22 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 115 cm, penetrating the center of the crater towards the probable axis of entry of the
shell, a wooden rail, apparent approximate northeast direction;
No. 82: at a distance of 20 meters from crater No. 81 in the direction from the checkpoint along
the strip of forest, under an electric power line, perpendicular to the strip of forest, a crater was found that
is 25 x 25 cm wide (diameter at the intersection along the inner part), with a depth of approximately 135
cm, penetrating the center of the crater towards the probable axis of entry of the shell, a wooden rail,
apparent approximate northeast direction;
No. 83: at a distance of 50 meters from crater No. 82 in a direction from the road at an angle of
45° to the conventional boundary, perpendicular to the road, in a direction of the plain to Volnovakha, a
crater was found that is 21 x 20 cm wide (diameter at the intersection along the inner part), with a depth
of approximately 115 cm, penetrating the center of the crater towards the probable axis of entry of the
shell, a wooden rail, apparent approximate northeast direction;
No. 84: at a distance of 82 meters from crater No. 83 and in a direction along an electric power
line, perpendicular to a strip of forest, in the direction of the plane to Volnovakha, a crater was found that
is 20 x 18 cm wide (diameter at the intersection along the inner part), with a depth of approximately 110
cm, penetrating the center of the crater towards the probable axis of entry of the shell, a wooden rail,
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apparent approximate northeast direction;
No. 85: at a distance of 50 meters from crater No. 84 in a direction from the road at an angle of
60° to an electric power line, perpendicular to a strip of forest, in the direction of the plane to
Volnovakha, in a corn field, a crater was found that is 45 x 30 cm wide (diameter at the intersection along
the inner part), with a depth of approximately 40 cm;
No. 86: at a distance of 140 meters from a second electric power line in the direction of an
electric power line perpendicular to a strip of forest in a direction to the road, at an angle of 45° to an
electric power line in the direction of the plane to Volnovakha, a crater was found that is 20 x 19 cm wide
(diameter at the intersection along the inner part), with a depth of approximately 110 cm;
No. 87: at a distance of 85 meters from crater No. 86 in the direction of the checkpoint parallel to
the road, a crater was found that is 18 x 20 cm wide (diameter at the intersection along the inner part),
with a depth of approximately 110 cm;
No. 88: at a distance of 46 meters from crater No. 87 in the direction of the checkpoint at an angle
of 15° to the conventional boundary of the parallel road, a crater was found that is 22 x 25 cm wide
(diameter at the intersection along the inner part), with a depth of approximately 115 cm;
During this investigative act a diagram (map) of sites was drawn up where craters were found that
were named in the record, which is attached to this record as addendum No. 1.
While conducting this review a “Sony-Cyber Shot” camera was used with a 2 GB “Transcend”
memory card with automatic settings, the photos of which will be attached to this record after they are
produced in the form of a photo board (addendum No. 2).
Senior investigator at the Internal Affairs Agency
of the investigations department of the Directorate
of the Security Service of Ukraine in the Donetsk region
Lt. Colonel of Justice [signature] O.V. Martyniuk
- 339 -
- 340 -
Annex 15
Security Service of Ukraine, ATO Regulation Governing Checkpoints
(22 January 2015)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
- 341 -
- 342 -
A Warning! 01/22/2015 - This is not the current version of the document Go to current?
FIRST DEPUTY HEAD OF THE ANTI-TERRORISM CENTER OF THE
SECURITY SERVICE OF UKRAINE
(HEAD OF ANTI-TERRORISM OPERATION ON THE TERRITORY OF
DONETSK DONETSK)
ORDER
22.01.2015 Ns 27og
About approval of the Temporary order of control over
movement of persons, vehicles and freights along the line of
collision within Donetsk and Luhansk areas
In accordance with Articles 12, 13, 14, 15 of the Law of Ukraine "On Combating Terrorism", the
third paragraph of item 8 of the Regulation on the Operational Headquarters for Anti-Terrorist
Operation Management, approved by the Cabinet of Ministers of Ukraine dated May 12, 2004 Ns 611-
11, ORDER:
1. To approve the Temporary order of control over movement of persons, vehicles and freights
along the line of contact within Donetsk and Luhansk areas (further - the Order), which is added.
2. The Procedure approved by this order shall be applied until the end of the anti-terrorist
operation on the territory of Donetsk and Luhansk oblasts or the adoption of the Law of Ukraine "On
Temporary Measures to Ensure the Anti-Terrorist Operation".
3. Order of the First Deputy Head of the Anti-Terrorist Center of the Security Service of Ukraine
(Head of the Anti-Terrorist Operation in Donetsk and Luhansk oblasts) Ns 144og of 29.12.2014
Luhansk region "to be considered invalid.
4. Responsibility for the execution of the order shall be assigned to the Chief of Staff - First
Deputy Chief of the Anti-Terrorist Operation in the Donetsk and Luhansk regions.
5. The order to bring to the personnel in the part concerning it, heads of Donetsk and Luhansk
regional state administrations.
First Deputy Head of the
Anti-Terrorist Center
of the Security Service of Ukraine
(Head of the Anti-Terrorist
Operation in Donetsk
and Luhansk Oblasts)
Lieutenant General
AGREED:
Chief of Staff- First Deputy Chief of the
Anti-Terrorist Operation in Donetsk
and Luhansk oblasts
Major General
S.M. Popko
O.S. Syrian
- 343 -
Calculation of proof
Ns s
/n
To whom the order was brought Note
1 To the head of sector "A"
2 To the head of sector "B"
3 To the head of sector "C"
4 To the head of sector "M"
5 Senior Task Force of the NMU
6 Senior Task Force of the State Traffic Police
7 Senior Task Force of the Ministry of Internal Affairs
8 Senior Task Force SBU
9 To the chief of VSP in ZSU - the chief of GU VSP ZSU
10 Chairman of the Donetsk region state administration
11 The head of the Luhansk region. state administration
- 344 -
Addendum
to the order of the First Deputy Head of the
Anti-Terrorist Center
of the Security Service of Ukraine
(Head of the Anti-Terrorist Operation
in the Donetsk
and Luhansk regions)
22.01.2015 T12 27og
TEMPORARY PROCEDURE
for control over the movement of persons, vehicles and goods
along the line of contact within the Donetsk and Luhansk regions
I. General provisions
1.1. This Interim Procedure (hereinafter - the Procedure) defines certain issues of control over the
movement in the area of the anti-terrorist operation in Donetsk and Luhansk regions (hereinafter -
ATO), as well as along the line of contact within Donetsk and Luhansk regions, persons, vehicles and
cargo , as well as types of checkpoints, entry-exit checkpoints, the order of their operation, the rules of
their crossing.
1.2. In this Procedure, the terms are used in the following meaning:
uncontrolled territory - a territory in which public authorities temporarily do not exercise or do
not exercise in full the powers provided by the legislation of Ukraine;
Coordination Center (hereinafter - CC) is a unit for regime and economic activities in the
territories adjacent to the security strip along the demarcation line, which is established at the
operational headquarters of the ATO, and which includes representatives of the Security Service of
Ukraine (hereinafter - SBU), Of the Armed Forces of Ukraine (hereinafter - the Armed Forces), the
Ministry of Internal Affairs of Ukraine (hereinafter - MIA), the National Guard of Ukraine (hereinafter
- NMU), the State Border Guard Service of Ukraine (hereinafter - SBGS), the State Fiscal Service of
Ukraine (hereinafter - SFSU) activities of coordination groups and organization of issuance of passes
for individuals and legal entities (hereinafter - persons), vehicles and cargo;
Coordination group (hereinafter - CG) is a unit on regime and economic activity in the territories
adjacent to the security strip along the demarcation line, which is created under the departments
(divisions) of the Ministry of Internal Affairs of Ukraine districts (cities), and which includes
representatives of SBU, ZSU, MVSU, NMU, SBGS, SFSU, other forces and means of the subjects of
fight against terrorism, and also the enterprises, establishments, the organizations which are involved
in anti-terrorist operation for the purpose of timely and qualitative check of the persons who have
expressed desire to cross a line of contact within Donetsk, Luhansk regions and the organization of the
issuance of passes for individuals and legal entities, vehicles and goods.
pass - a document granting the right of entry, passage (hereinafter - entry) into uncontrolled
territories and exit, exit (hereinafter - exit) from them;
checkpoint - a barrier point in a certain place (on the site, in a building or complex) in the area of
anti-terrorist operation, designed to control the movement of people, vehicles, verification of identity
documents, personal care and inspection of things that they inspect vehicles and items transported in
order to prevent unauthorized entry of persons into uncontrolled territory, intrusion of terrorists and
their accomplices from uncontrolled territory, as well as import (export) to (from) the area of antiterrorist
operation of objects and substances withdrawn from civil circulation or restricted in
circulation; protection of forces and means involved in the anti-terrorist operation from illegal
encroachments by terrorists and illegal armed (paramilitary) formations;
entry-exit checkpoint (hereinafter - checkpoint) - a specially designated area of the second border
checkpoint on highways, railway stations with a complex of buildings, special, engineering,
fortifications and technical facilities, where certain types of state control by control authorities,
services Ukraine and admission to and from the uncontrolled territory of persons, vehicles, cargo and
other property;
control bodies and services - subdivisions of the SBGS and other bodies exercising state control at
checkpoints;
competent authorities - units of counter-terrorism entities;
permit - a document of the established sample, which gives the right to transport goods (cargo)
from temporarily uncontrolled territories to another territory of Ukraine and from the territory of
Ukraine to temporarily uncontrolled territories ( Annex 1 );
application with appendices - an application for a permit to move goods to (from) certain
territories in which public authorities temporarily do not exercise or do not exercise in full the powers
provided by the legislation of Ukraine ( Annex 2);
Other terms in this Procedure are used in the meaning given in the Criminal Procedure Code of
Ukraine , the Customs Code of Ukraine , the laws of Ukraine "On Combating Terrorism" , "On the
Unified State Demographic Register and documents proving Ukrainian citizenship, identity or special
status" , "On the legal status of foreigners and stateless persons" , "On border control" and other
regulations.
1.3. Citizens of Ukraine have the right to free and unimpeded entry into and exit from the area of
the anti-terrorist operation through checkpoints and checkpoints, subject to presentation of passport
documents proving identity and citizenship of Ukraine and a permit issued by the CC and CG (defined
places). Passes are signed by the heads of the CC and CG.
- 345 -
1.4. The Law of Ukraine "On Prevention and Counteraction to Legalization (Laundering) of
Proceeds from Crime or Terrorist Financing" applies to individuals entering and leaving the area of the
anti-terrorist operation .
1.5. Entry of foreigners and stateless persons into the area of the anti-terrorist operation and
departure from it is allowed only with a passport and a permit issued by the CC and KG (certain
places).
1.6. Customs procedures related to the movement of goods, commercial vehicles and citizens to
and from the area of the anti-terrorist operation are carried out at the relevant checkpoints in
accordance with current legislation of Ukraine.
1.7. The procedure for entering and leaving the area of the anti-terrorist operation, the procedure
for crossing the line of contact shall be promulgated through the state media by the operational
headquarters for the management of the anti-terrorist operation and local authorities.
1.8. Checkpoints are formed as checkpoints of the first frontier and checkpoints of the second
frontier.
1.9. At the checkpoints of the first frontier is carried out:
control and admission to and from the uncontrolled territory of persons, vehicles, cargo and other
property;
receipt and registration of applications from persons who have expressed a desire to cross the line
of contact in the controlled area and submit them to the CG;
receiving passes from the CG, their registration and issuance to persons (within 10 days after
receipt of the application) who have expressed a desire to cross the line of contact in the controlled
area in the presence of identity documents;
the passage of persons during the day in a controlled or uncontrolled area, in case of death of
close relatives, family members or illness of loved ones, as evidenced by relevant documents
(telegram certified by health care institutions, death or illness of loved ones; confirms the place of
burial of relatives) in the presence of identity documents and with the written (oral) consent of the
head of the CG;
withdrawal of passes from persons who have expressed a desire to cross the line of contact into
uncontrolled territory, in the presence of identity documents. Keeping records of issued passes, their
storage and reconciliation with the issuance of passes with CG;
checking the availability of a permit issued by the SFSU for the transportation of cargo and other
property;
preliminary control over the movement of people, vehicles, things, preliminary inspection of
vehicles moving through the checkpoint for the presence of prohibited items and substances (weapons,
ammunition, explosives, drugs, etc.);
preventing terrorists from leaving the ATO area and infiltrating their accomplices;
prevention of terrorist acts and other illegal acts;
temporary restriction (prohibition) of traffic and people;
cessation of any attempts to illegally change the line of demarcation.
1.10. At the checkpoints of the second border, certain checkpoints are carried out:
state control over the movement of people, vehicles, things; inspection of vehicles moving
through the checkpoint for the presence of prohibited items and substances (weapons, ammunition,
explosives, drugs, etc.);
control over the movement of vehicles, goods (cargoes) transported by vehicles, the presence of
the relevant permit for the carriage of goods (goods), its compliance with the data specified in such
permit, as well as the presence of prohibited items and substances;
identification and detention of persons suspected of committing criminal offenses or hiding from
the bodies of pre-trial investigation, investigating judge, court or evading criminal punishment, and
stolen vehicles;
preventing the exit of prohibited goods (cargo) from the temporary uncontrolled territory and,
accordingly, the transportation of such goods (cargo) to such territory;
verification of identity documents, permits;
preventing terrorists from leaving the ATO area and infiltrating their accomplices;
prevention of terrorist acts and other illegal acts;
temporary restriction (prohibition) of traffic, goods (goods), and people.
1.11. The checkpoints of the first and second frontiers of the designated checkpoints interact and
exchange information.
1.12. Entry into the uncontrolled territory and exit from it is carried out through checkpoints,
taking into account the features defined by this Procedure:
citizens of Ukraine (except for persons involved in the anti-terrorist operation) - subject to the
presentation of any document specified in Article 5 of the Law of Ukraine "On Citizenship of
Ukraine" or Article 2 of the Law of Ukraine "On Procedure for Leaving Ukraine and Entering
Ukraine" Ukraine ", and those who have not reached 16 years of age in compliance with the
requirements provided for such persons by the Rules of crossing the state border by citizens of
Ukraine , approved by the Cabinet of Ministers of Ukraine of January 27, 1995 Ns 57, and pass;
foreigners and stateless persons - on a passport and pass.
- 346 -
1.13. Movement to temporarily uncontrolled territories and from them goods (cargoes) by legal
entities and individuals is carried out through entry-exit checkpoints taking into account the features
determined by this Procedure, provided that the carrier or its owner (authorized person) presents such
special cargo permission issued by the SFSU.
1.14. Movement of goods (goods) is allowed only to business entities that are registered with the
SFSU and pay taxes to the State Budget of Ukraine in the manner and amounts established by the
legislation of Ukraine, according to the lists approved by the Procedure.
1.15. In case of violation of the ceasefire (unauthorized opening of fire, small arms fire, artillery
systems, rocket-propelled grenades, information on the actions of sabotage and reconnaissance groups)
by illegal armed groups at a distance of 30 km from transport corridors to move population, transport
means or direct shelling of the transport corridor, checkpoints, checkpoints, the direction of movement
is blocked.
Checkpoints, checkpoints, by order of the head of the sector with the notification of the
operational headquarters of the ATO, temporarily suspend their work on registration of documents for
admission to the controlled territory of Ukraine, personnel are circular defense, the population at
checkpoints are evacuated to safe places ( dugouts, ceilings, etc.), vehicles are not allowed.
II. Composition and number of checkpoints
2.1. The decision on the organization and termination of checkpoints, their number, personnel and
location of checkpoints is made by the head of the operational headquarters for ATO management.
2.2. A unit from a platoon (group) or more is assigned to serve at the checkpoint, from among the
persons involved in the anti-terrorist operation, which can be reinforced with weapons, military
equipment, units of anti-terrorism entities, etc.
2.3. The number of personnel involved in the service at the checkpoint is determined by the senior
commander, taking into account the situation in the area of tasks, the scope of combat missions, and
the ability of the unit to maintain a circular defense.
2.4. According to the decision of the senior manager, an officer is appointed senior at the
checkpoint, all personnel are subordinated to him (including from other structures whose
representatives are involved in the service). He is responsible for the successful completion of tasks,
compliance with the law by personnel during their service, as well as their compliance with personal
safety measures.
2.5. The equipment of checkpoints and logistical support is carried out in accordance with the
decision of the head of the operational headquarters for ATO management.
2.6. Roadblocks are marked with road signs and markings in accordance with the Rules of the
Road , approved by the Cabinet of Ministers of Ukraine dated October 10, 2001 Na 1306, in order to
prevent collisions with vehicles.
III. Rights and responsibilities of personnel
3.1. Personnel serving at the checkpoint have the right to:
stop and inspect vehicles, paying special attention to the detection of weapons, ammunition,
explosives, drugs, etc .;
to check from drivers and passengers identity documents, passes and documents confirming the
right of ownership of vehicles and number plates to them, the right to use and drive vehicles, waybills
and compliance of goods transported, goods transport and other documents, as well as check their
availability in the databases of automated information retrieval systems;
in the presence of the bases determined by the current legislation to carry out detention and
personal search of citizens, inspection of their things, vehicle and cargo, and also if necessary to
withdraw things which can be tools of commission of a criminal or administrative offense, contain
traces or signs of such offense 'people;
to keep persons detained in administrative order in premises specially designated for these
purposes;
apply to offenders measures of physical influence, special means and weapons in cases and in the
manner prescribed by law (Articles 12, 13, 14, 15 of the Law of Ukraine "On Police" and Articles 20,
21, 22, 24 of the Statute of the Internal Service of the Armed Forces of Ukraine approved by the Law
of Ukraine);
to carry out the seizure of goods (goods) and other property in accordance with the requirements
of applicable law, within its competence;
to use in the established order special technical and vehicle means for detection and fixing of
offenses;
to carry out in the established order photographing, sound recording, video recording for detection
and fixing of illegal actions;
to carry out automated exchange of information about vehicles that have crossed the border.
Additionally, at the first border checkpoint:
receive applications, issue and withdraw passes when moving persons who have expressed a
desire to cross the line of contact.
3.2. The senior checkpoint is obliged to:
to organize service at the checkpoint (order of combat duty, duty and order of rest);
check the presence of a pass for persons who have expressed a desire to cross the line of contact;
to keep the Book of records of passes and applications, the Journal of control over the passage of
vehicles at the checkpoint ( Annex 1 );
- 347 -
- 348 -
Annex 16
Report No. 1 of Presentation of a Person for Identification by Photos, drafted
by Senior Lieutenant K.O.Pidgirnyi, Senior Investigator, Investigations
Department of the Directorate of the Security Service of Ukraine in the Kharkiv
Region (26 February 2015)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 349 -
- 350 -
REPORT [No. 1]
of Presentation of a Person for Identification by Photos
      

            
         

             
              


- 351 -

 
 
- 352 -

Memorandum to the Record of presenting a person for recognition
based on photographs
of 26 February 2015
            
              
           
             
 

- 353 -
- 354 -
Annex 17
Report No. 2 of Presentation of a Person for Identification by Photos, drafted
by Senior Lieutenant K.O.Pidgirnyi, Senior Investigator, Investigations
Department of the Directorate of the Security Service of Ukraine in the Kharkiv
Region (26 February 2015)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 355 -
- 356 -

REPORT [No. 2]
of Presentation of a Person for Identification by Photos
      

              
    

             
                
 

- 357 -

 
 
- 358 -

Memorandum to the Record of presenting a person for recognition
based on photographs
of 26 February 2015
            
              
           
             
 

- 359 -
- 360 -
Annex 18
Report No. 3 of Presentation of a Person for Identification by Photos, drafted by
Senior Lieutenant K.O.Pidgirnyi, Senior Investigator, Investigations Department of
the Directorate of the Security Service of Ukraine in the Kharkiv Region
(26 February 2015)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 361 -
- 362 -

REPORT [No. 3]
of Presentation of a Person for Identification by Photos
      

             
     

             
               

- 363 -

 
 
- 364 -

Memorandum to the Record of presenting a person for recognition
based on photographs
of 26 February 2015
              
            
           
             
 

- 365 -
- 366 -
Annex 19
Ruling Granting Recording of V.Dvornikov’s Conversations, drafted by Investigating
Judge R.M. Piddubnyi, the Court of Appeal in Kharkiv District (27 February 2015)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 367 -
- 368 -
193
COPY
Declassified
Secret
(upon completion)
Counterpart No. 2
RULING
IN THE NAME OF UKRAINE
February 27, 2015 Kharkiv
Investigating Judge of the Court of Appeal in Kharkiv Districtthe R.M. Piddubnyi, having reviewed
the petition of Major of Justice A.V. Ryzhylo, a senior special investigator with the Investigations Department
at the Kharkiv Regional Directorate of the SBU [Security Service of Ukraine], requesting authorization to
conduct covert investigative activity in criminal proceeding No. 42015220000000115 under Article 258(3) of
the Criminal Code of Ukraine,
FOUND:
According to the petition, the Investigations Department of the Kharkiv Regional Directorate of the
SBU is conducting a pre-trial investigation in criminal proceeding No. 42015220000000115 under Article
258(3) of the Criminal Code of Ukraine.
It was established in the course of the pre-trial investigation that on February 22, 2015, at around 1:10
PM, opposite the five-story residential building located at 9/1 Prospekt Marshala Zhukova, Kharkiv, an
unidentified explosive device exploded, resulting in the deaths of four persons. According to preliminary
information, the unidentified explosive device was detonated during a peaceful civil protest march dedicated
to the “Anniversary Commemoration of Those Who Died During the Peaceful Euromaidan Protests.”
The pre-trial investigation found that Ukrainian citizen Volodymyr Mykolayovych Dvornikov, born in
Kharkiv on 06/13/1978 and residing at Apt. 193, 32 vul. Simnadtsyatoho Partiynoho Zyizdu, Kharkiv, was
directly involved in the commission of said crime. This person was detained as a suspect pursuant to Article
208 of the Criminal Procedure Code of Ukraine.
At the same time, the person’s conversations and conduct may reveal information about the
circumstances surrounding the commission of the crime, the location of evidence in the case, and information
about the person and his contacts, including those who were involved in committing the crime.
Thus, in the course of the pre-trial investigation, in order to elucidate the circumstances surrounding
the commission of the crime, locate and record evidence in the case, verify information about the person and
his conduct, and ascertain information about the person’s contacts, including the possibility of identifying other
persons involved in committing the serious crime provided for by Article 258(3) of the Criminal Code of
Ukraine, the need has arisen to make an audio/video recording of a place, specifically a hidden recording using
audio and video recording devices in the following publicly accessible places:
premises of the Temporary Detention Center, a unified special institution of the Main Directorate of the
Ministry of Internal Affairs of Ukraine for the Kharkiv Region, and the Kharkiv Pre-Trial Detention Center
without the knowledge of the persons present therein.
For these reasons, the prosecution has petitioned the court to authorize covert investigative activity in
the form of audio and video surveillance of the location. As a result of this procedural step, the investigation
expects to obtain information
Incoming ref. 509t dated 02/27/2015
- 369 -
194
93
COPY
regarding the conversations and conduct of V.M. Dvornikov through the use of audio and video recording in
publicly accessible places. This information will make it possible to ascertain the circumstances surrounding
the commission of the crime, the location of evidence in the case, and information about the person and his
contacts, including those involved in the commission of the serious crime provided for by Article 258(3) of the
Criminal Code of Ukraine.
The court, having thoroughly examined the file of the criminal proceeding and heard the arguments of
the investigator, finds that the prosecution has proven there are sufficient grounds to believe that a serious crime
was committed and that conducting the aforementioned covert investigative action could help obtain evidence
that may be materially relevant to ascertaining the circumstances surrounding the crime and identifying persons
who may have been involved in committing it.
Furthermore, the court agrees with the investigator’s argument that obtaining such evidence by any
other means does not appear possible.
Based on the foregoing and pursuant to Articles 246, 248, 249, and 270 of the Criminal Procedure
Code of Ukraine, the court
HEREBY RULES:
To grant Major of Justice A.V. Ryzhylo, a senior special investigator with the Investigations Department at the
Kharkiv Regional Directorate of the SBU, permission for a period of two months to perform covert investigative
activity in the form of audio and video surveillance and make audio and video recordings of the following
publicly available place: premises of the Temporary Detention Center, a unified special institution of the Main
Directorate of the Ministry of Internal Affairs of Ukraine for the Kharkiv Region (35 vul. I. Kamysheva,
Kharkiv) and the Kharkiv Pre-Trial Detention Center (99 Poltavskyi Shlyakh, Kharkiv)
without the knowledge of the persons located therein, in relation to Ukrainian citizen Volodymyr Mykolayovych
Dvornikov, d.o.b. 06/13/1978
This ruling shall be valid until April 27, 2015.
Investigating Judge [signature] R.M. Piddubnyi
Kharkiv Regional Court of Appeal, Ukraine, Identification code 0289413
Outgoing ref. No. 2712G
02/27/2015
[stamp:] ________ Department of the Kharkiv
Regional Directorate of the SBU
Register No. 70/6/4004
11/23/16
- 370 -
Annex 20
Ruling Granting Recording of V. Tetutskiy’s Conversations, drafted by Investigating
Judge R.M. Piddubnyi, the Court of Appeal in Kharkiv District (27 February 2015)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 371 -
- 372 -
196
COPY
Declassified [illegible]
Secret
(upon completion)
Counterpart No. 2
RULING
IN THE NAME OF UKRAINE
February 27, 2015 Kharkiv
Investigating Judge of the Court of Appeal in Kharkiv Districtthe R.M. Piddubnyi, having reviewed
the petition of Major of Justice A.V. Ryzhylo, a senior special investigator with the Investigations Department
at the Kharkiv Regional Directorate of the SBU [Security Service of Ukraine], requesting authorization to
conduct covert investigative activity in criminal proceeding No. 42015220000000115 under Article 258(3) of
the Criminal Code of Ukraine,
FOUND:
According to the petition, the Investigations Department of the Kharkiv Regional Directorate of the
SBU is conducting a pre-trial investigation in criminal proceeding No. 42015220000000115 under Article
258(3) of the Criminal Code of Ukraine.
It was established in the course of the pre-trial investigation that on February 22, 2015, at around 1:10
PM, opposite the five-story residential building located at 9/1 Prospekt Marshala Zhukova, Kharkiv, an
unidentified explosive device exploded, resulting in the deaths of four persons. According to preliminary
information, the unidentified explosive device was detonated during a peaceful civil protest march dedicated
to the “Anniversary Commemoration of Those Who Died During the Peaceful Euromaidan Protests.”
The pre-trial investigation found that Ukrainian citizen Viktor Viktorovych Tetyutskyi, born in Zhovte,
Slavyanoserbsk District, Luhansk Region on 05/05/1982 and residing at 20 vul. Batytskoho, Kharkiv, was
directly involved in the commission of said crime. This person was detained as a suspect pursuant to Article
208 of the Criminal Procedure Code of Ukraine.
At the same time, the person’s conversations and conduct may reveal information about the
circumstances surrounding the commission of the crime, the location of evidence in the case, and information
about the person and his contacts, including those who were involved in committing the crime.
Thus, in the course of the pre-trial investigation, in order to elucidate the circumstances surrounding
the commission of the crime, locate and record evidence in the case, verify information about the person and
his conduct, and ascertain information about the person’s contacts, including the possibility of identifying other
persons involved in committing the serious crime provided for by Article 258(3) of the Criminal Code of
Ukraine, the need has arisen to make an audio/video recording of a place, specifically a hidden recording using
audio and video recording devices in the following publicly accessible places:
Temporary Detention Center, a unified special institution of the Main Directorate of the Ministry of Internal
Affairs of Ukraine for the Kharkiv Region (45 vul. Ivana Kamysheva, Kharkiv) and the Kharkiv Pre-Trial
Detention Center (99 Poltavskyi Shlyakh, Kharkiv)
without the knowledge of the persons present therein.
For these reasons, the prosecution has petitioned the court to authorize covert investigative activity in
the form of audio and video surveillance of the location. As a result of this procedural step, the investigation
expects to obtain information
Incoming ref. 508t dated 02/27/2015
- 373 -
197
[illegible]
COPY
regarding the conversations and conduct of V.V. Tetyutskyi through the use of audio and video recording in
publicly accessible places. This information will make it possible to ascertain the circumstances surrounding
the commission of the crime, the location of evidence in the case, and information about the person and his
contacts, including those involved in the commission of the serious crime provided for by Article 258(3) of the
Criminal Code of Ukraine.
The court, having thoroughly examined the file of the criminal proceeding and heard the arguments of
the investigator, finds that the prosecution has proven there are sufficient grounds to believe that a serious crime
was committed and that conducting the aforementioned covert investigative action could help obtain evidence
that may be materially relevant to ascertaining the circumstances surrounding the crime and identifying persons
who may have been involved in committing it.
Furthermore, the court agrees with the investigator’s argument that obtaining such evidence by any
other means does not appear possible.
Based on the foregoing and pursuant to Articles 246, 248, 249, and 270 of the Criminal Procedure
Code of Ukraine, the court
HEREBY RULES:
To grant Major of Justice A.V. Ryzhylo, a senior special investigator with the Investigations Department at the
Kharkiv Regional Directorate of the SBU, permission for a period of two months to perform covert investigative
activity in the form of audio and video surveillance and make audio and video recordings of the following
publicly available place: premises of the Temporary Detention Center, a unified special institution of the Main
Directorate of the Ministry of Internal Affairs of Ukraine for the Kharkiv Region (35 vul. I. Kamysheva,
Kharkiv) and the Kharkiv Pre-Trial Detention Center (99 Poltavskyi Shlyakh, Kharkiv)
without the knowledge of the persons located therein, in relation to Ukrainian citizen Viktor Viktorovych
Tetyutskyi, d.o.b. 05/05/1982
This ruling shall be valid until April 27, 2015.
Investigating Judge [signature] R.M. Piddubnyi
Kharkiv Regional Court of Appeal, Ukraine, Identification code 0289413
Outgoing ref. No. 2713G
02/27/2015
[stamp:] ________ Department of the Kharkiv
Regional Directorate of the SBU
Register No. 70/6/4003
11/23/16
- 374 -
Annex 21
Report No. 3 of Presentation of a Person for Identification by Photos, drafted by
Captain of Justice A.O.Prosniak, Investigator, Investigations Department of the
Directorate of the Security Service of Ukraine in the Kharkiv Region (5 March 2015)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
- 375 -
- 376 -
Report No. 3
of Presentation of a Person for Identification by Photos
the city of Kharkiv 05 March 2015
Started at 16:40
Finished at 17:15
with the participation of the witness Lvov Oleksiy Leonidovych, born on 13 February 1989,
registered at the address: the city of Kharkiv, 191 Nemyshlianska Str., being governed by the
requirements of the articles 103-105, 107, 223, 228 and 231 of the Criminal Procedure Code of
Ukraine…
               
                 
                  
                  
                   
  
- 377 -
CERTIFICATE
to the protocol of presentation of a person for identification by photos  dated
05.03.2015
              
        
-              
- 378 -
Annex 22
Report No. 1 of Presentation of a Person for Identification by Photos, drafted by
Captain of Justice A.O.Prosniak, Investigator, Investigations Department of the
Directorate of the Security Service of Ukraine in the Kharkiv Region (5 March 2015)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
- 379 -
- 380 -
Report No. 1
of Presentation of a Person for Identification by Photos
the city of Kharkiv 05 March 2015
Started at 15:30
Finished at 15:55
with the participation of the witness Pislar Maksym Oleksandrovych, born on 26 August 1993,
registered at the address: the city of Kharkiv, 295 Kliuchkivska Str., app. 113, being governed
by the requirements of the articles 103-105, 107, 223, 228 and 231 of the Criminal Procedure
Code of Ukraine…
                   
                    
                  
                   
                 
                  
          
- 381 -
CERTIFICATE
to the protocol of presentation of a person for identification by photos  dated
05.03.2015
            
         

-              
- 382 -
Annex 23
Report No. 2 of Presentation of a Person for Identification by Photos, drafted by
Captain of Justice A.O.Prosniak, Investigator, Investigations Department of the
Directorate of the Security Service of Ukraine in the Kharkiv Region (5 March 2015)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 383 -
- 384 -
Report No. 2
of Presentation of a Person for Identification by Photos
the city of Kharkiv 05 March 2015
Started at 16:00
Finished at 16:30
with the participation of the witness Bunchikov Vitaliy Yuriyovych, born on 03 May 1984,
registered at the address: Kharkiv oblast, Dvorichanskyi region, the village of Kolodizne 31
Molodizhna Str., being governed by the requirements of the articles 103-105, 107, 223, 228
and 231 of the Criminal Procedure Code of Ukraine…
                 
                  
                    
                 
                  
              
- 385 -
CERTIFICATE
to the protocol of presentation of a person for identification by photos  dated
05.03.2015
            
         

-              
- 386 -
Annex 24
Expert Conclusion No. 5, drafted by the Forensic Research Center, Ministry of
Internal Affairs of Ukraine, Main Directorate of the Ministry of Internal Affairs of
Ukraine in Kharkiv Region (16 March 2015)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
- 387 -
- 388 -

THE MINISTRY OF INTERNAL AFFAIRS OF UKRAINE
MAIN DIRECTORATE OF THE MINISTRY OF INTERNAL AFFAIRS OF UKRAINE
IN KHARKIV REGION
FORENSIC RESEARCH CENTER
       
   

EXPERT CONCLUSION
      

- 389 -

CONCLUSIONS
              
                  
                
           
              
                
            
                
                
                
       
                 
                
                 

   
- 390 -
Annex 25
Ukrainian Border Guard Service Letter No. 51/442 to Major of Justice A.B. Ryjylo,
Senior Investigator, Investigations Department of the Directorate of the Security
Service of Ukraine in the Kharkiv Region , dated 16 March 2015
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
- 391 -
- 392 -
STATE BORDER GUARD OF UKRAINE
Eastern Regional Department
Khrakiv Border Guard Unit
61045, the city of Kharkiv, 228 Klochkivska St., p/o 11122 (057) 340-55-92
______________________________________________________________________________
16.03.2015 51/442
To the Senior Investigator of the Specially
Important Cases of the Investigations Department
of the Directorate of the Security Service of
Ukraine in the Kharkiv region
Major of justice A.V. Ryzhylo
61002, the city of Kharkiv, 2 Myronosytska St..
[…]
I am sending to your address an excerpt from the “Information On Persons Who Crossed
the State Border of Ukraine” database in relation to the citizen of Ukraine Volodymyr
Volodymyrovych Dvornikov, born on June 13, 1978.
- 393 -
[…]
Date of
crossing
Direction Name Date of
birth
Citizenship Passport
number
Place of
crossing
Vehicle
12.02.2015
13:34:23
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka By foot
24.01.2015
12:01:27
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Pletynivka Sedan
VAZ
AX5350CE
22.01.2015
14:28:39
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
VAZ
AX5350CE
21.01.2015
15:48:56
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
VAZ
AX5350CE
21.01.2015
8:20:54
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
VAZ
AX5350CE
20.01.2015
13:02:46
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
VAZ
AX5350CE
14.01.2015
18:09:30
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
VOLKSVAGEN
AX4989BB
13.01.2015
9:13:04
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka By foot
23.12.2014
17:16:51
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka By foot
23.12.2014
9:13:52
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka By foot
03.12.2014
19:31:09
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
OPEL
AX0379EC
03.12.2014
12:27:57
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Minivan
GAZ
K569YO
22.11.2014
18:21:12
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
HYUNDAI
AX2359EA
20.11.2014
16:55:04
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Minivan
MERCEDES
H895OH
23.10.2014
16:17:24
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
OPEL
AX7412EK
23.10.2014
9:57:27
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
OPEL
AX7412EK
25.09.2014
17:38:22
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
VOLKSVAGEN
B1840BT
25.09.2014
10:48:20
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
RENAULT
AX7949EA
- 394 -
13.09.2014
20:37:44
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka By foot
13.09.2014
12:34:39
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Bus
GAZ
H041OO
08.09.2014
17:15:47
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
DODGE
AX7595EC
08.09.2014
9:00:20
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
RENAULT
AX5242CT
20.08.2014
18:48:07
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Cargo truck
MERCEDES
BC6011EE
20.08.2014
10:21:59
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Minivan
MERCEDES
H974ME
14.08.2014
13:15:09
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka By foot
14.08.2014
8:26:40
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka By foot
11.08.2014
14:14:20
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Pletynivka By foot
02.08.2014
8:34:32
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka By foot
01.07.2014
17:41:11
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka By foot
01.07.2014
10:37:02
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
VOLKSVAGEN
AX0034BB
19.06.2014
14:22:28
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
CHEVROLET
AX5984CM
19.06.2014
8:10:22
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Minivan
VOLKSVAGEN
B18408BT
06.06.2014
15:42:59
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Minivan
VOLKSVAGEN
P414YO
06.06.2014
10:03:45
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Bus
NEOPLAN
AX3468CI
02.06.2014
15:48:31
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Minivan
VOLKSVAGEN
M710MC
02.06.2014
10:07:38
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
VOLKSVAGEN
AX9371CO
26.05.2014
13:15:24
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Minivan
GAZEL
M715AM
26.05.2014
8:12:03
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Sedan
VOLKSVAGEN
AX0817AI
12.05.2014
9:56:22
Entry VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Kozacha
Lopan
Rail
transportation
- 395 -
Local train
6334
K. Lopan-
Belgorod
12.05.2014
18:41:28
Exit VOLODYMYR
DVORNIKOV
13.06.1978 UKRAINE […] Hoptivka Minivan
MERCEDES
AX6060CM
[…]
- 396 -
Annex 26
Report of Identification of Dvornikov’s Car, drafted by Senior Lieutenant of Justice
K.O.Pidgirnyi, Senior Investigator, Investigations Department of the Directorate of the
Security Service of Ukraine in the Kharkiv Region (19 March 2015)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 397 -
- 398 -
REPORT
of presenting objects for recognition based on photographs
      

             
                
               
                 
           

            
                     
                 
              
            
                 
               
 

            
            
             
            

- 399 -
- 400 -
Annex 27
Expert Conclusion No. 17, drafted by the Forensic Research Center, Ministry of
Internal Affairs of Ukraine, Main Directorate of the Ministry of Internal Affairs of
Ukraine in Kharkiv Region (20 March 2015)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
- 401 -
- 402 -
THE MINISTRY OF INTERNAL AFFAIRS OF UKRAINE
MAIN DIRECTORATE OF THE MINISTRY OF INTERNAL AFFAIRS OF UKRAINE
IN KHARKIV REGION
FORENSIC RESEARCH CENTER
61036, the city of Kharkiv, 34 Kovtun St.,
tel. (057) 721-15-90, [email protected]
___________________________________________________________________________
EXPERT CONCLUSION
20.03.2015 the city of Kharkiv No. 17
[…]
- 403 -
CONCLUSIONS
1. On the provided for research Samsung phone, IMEI - 356561/06/502104/1, which was
seized on February 26, 2015 during a personal search of V.V. Tetyutskyi, namely: on washes from
the outer and inner surfaces of the phone, SIM card and the battery to it (objects №№ 2, 3) cells
with nuclei were found.
The identified genetic traits (DNA profiles) of the saliva sample of citizen V.V. Tetyutskyi
(object № 1) and cells with nuclei found on the inner surface of the phone, SIM card and the battery
to it (object № 3) are listed in the table of results (Table 1.1, Annex 1).
The genetic characteristics of cells with nuclei detected in flushing from the outer surface
of the phone (object № 2) are mixed, contain genetic characteristics of more than two people, and
are not identifiable.
2. Genetic traits of cells with nuclei detected in the wash from the inner surface of the
phone, SIM card and the battery to it (object № 3) coincide with the genetic traits of the saliva
sample of citizen V.V. Tetyutskyi (object № 1). Probability of accidental coincidence of genetic
traits found in the wash from the inner surface of the phone, SIM card and the battery to it (object
№ 3) and saliva sample of citizen V.V. Tetyutskyi (object № 1) is 7.65 x 10-25. The set of genetic
traits found in these objects is experienced in no more than 1 in 1.3 x 10.24 (i.e., no more than 1 in
1 septillion people).
Judicial expert [Signed] Ya. O. Sinitsyna
[Stamp of the Ministry of Interior of Ukraine
Main Department in Kharkiv region
Science and Research Criminalistics Expert Center No. 14]
- 404 -
Annex 28
Expert Conclusion No. 16, drafted by the Forensic Research Center, Ministry of Internal
Affairs of Ukraine, Main Directorate of the Ministry of Internal Affairs of Ukraine in Kharkiv
Region (20 March 2015)
This excerpt has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51. A copy of the
whole document has been deposited with the Registry.
- 405 -
- 406 -
THE MINISTRY OF INTERNAL AFFAIRS OF UKRAINE
MAIN DIRECTORATE OF THE MINISTRY OF INTERNAL AFFAIRS OF UKRAINE
IN KHARKIV REGION
FORENSIC RESEARCH CENTER
61036, the city of Kharkiv, 34 Kovtun St.,
tel. (057) 721-15-90, [email protected]
___________________________________________________________________________
EXPERT CONCLUSION
20.03.2015 the city of Kharkiv No. 16
[…]
- 407 -
CONCLUSIONS
1. The identified genetic traits (DNA profile) of the saliva sample of citizen V.M.
Dvornikov are provided in the table of research results (Table 1, Annex 1).
On the washings from mobile phones provided for research: NOKIA IMEI
352294/01/963386/9 with SIM card (objects №№ 2, 3), Samsung IMEI: 356561/06/894258/1 with
SIM card (objects №№ 4, 5 ), Samsung IMEI: 355569/02/188904/8 (objects №№ 6, 7), Nokia
IMEI: 357276/05/950506/0 with SIM card (objects №№ 8, 9), MAXVI IMEI: 357225049858477
(objects № № 10, 11), Samsung IMEI: 356561/06/777717/8 with SIM card (objects №№ 12, 13)
cells with nuclei were detected.
2. The identified genetic traits (DNA profile) of cells with nuclei detected in washes from
the inner surface of the Samsung IMEI phone: 356561/06/894258/1, SIM card and the battery
(objects № 5) and from the inner surface of the Samsung IMEI phone: 355569/02/188904/8 and
the battery (objects № 7) coincide with each other and coincide with the genetic characteristics of
the saliva sample of citizen V.M. Dvornikov.
Judicial expert [Signed] O.V. Matarykina
[Stamp of the Ministry of Interior of Ukraine
Main Department in Kharkiv region
Science and Research Criminalistics Expert Center No. 14]
- 408 -
Annex 29
Expert Opinion No. 1975, drafted by the Forensic Research Center in Kharkiv Named
After M.S. Bokarius, Ministry of Justice of Ukraine (1 April 2015)
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 409 -
- 410 -
    
        
          
   
          
   
          
    
   

  
        
           
    
    
           
   
    
           
   
  
- 411 -


           
    
    
            
 
   
- 412 -

  
         

     
  
          
                   
    
    
         
            
     
                   
       
    
  
  
       
                
 
  
- 413 -

  
     
  
  
                 
 
        
     
              
       
        
  
         
  
  
- 414 -
Annex 30
Ukrainian Border Guard Service Letter No. 51/680 to Lieutenant Colonel I.V.
Selenkov, Deputy Head of the Investigations Department, Directorate of the
Security Service of Ukraine in the Kharkiv Region, dated 16 April 2015
This document has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51.
- 415 -
- 416 -
1
    
  
  
   
      
      
    
  
                      
                  
                 
- 417 -
2
              
 

            


       


       



       




       


       


       




       


       


        
  
- 418 -
3



        
 


       


       

  
 


       


        



       




         


       


  

                 
   
- 419 -
- 420 -
Annex 31
Expert Opinion of Forensic Psychological Examination Commission No. 1632/222,
drafted by the Forensic Research Center in Kharkiv Named After M.S. Bokarius,
Ministry of Justice of Ukraine (2o February 2017)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
Annex 31
Expert Opinion of Forensic Psychological Examination Commission No. 1632/222,
drafted by the Forensic Research Center in Kharkiv Named After M.S. Bokarius,
Ministry of Justice of Ukraine (20 February 2017)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
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KHARIUV 8-a [illegible], Kharkiv, 61177, tel. Expert Opinion of Forensic Psychological Examination Commission
I. Examinations...
examination.
O.M., Didyk
criminal
MINISTRY OF JUSTICE OF UKRAINE
FORENSIC RESEARCH CENTER IN KHARKIV NAMED AFTER M.S. BOKARIUS
(057) 372-12-20, tel./fax (057) 372-20-01.
E-mail: [email protected], Web: http://hniise.gov.ua,
Unified National Registry of Companies and Organizations Code - 02883133
No. 1632/222
Based on the records of criminal case No. 645/3612/15-k
(No. 1-kp/645/48/17)
Drafted on 20.02.2017
INTRODUCTION
On [illegible] 2017 [illegible] Professor M.S. Bocarius Kharkiv Research Institute Of Forensic Examinations,
pursuant to the ruling of 07.02.2017 issued by Frunze District [illegible] in Kharkiv (presiding judge: Gorpynych
O.V., bench judges: Bondareva I.V., [illegible] G.S.), received 2 (two) CDs and a mini DV video tape [illegible] of
crime reconstructions, in which the accused Bashlykov S.O., Dvornikov V.M., and Tetyutsky V.V. took place, dated
27.02.2015.
The objects to be examined were received by the lab from the clerk office. [illegible] was not compromised.
The objects to be examined are placed in sealed white paper envelopes bearing accompanying inscriptions in blue
ink. The texts of the accompanying inscriptions are provided below and shown on photographs No. 1, 2, 3, 4, 5, and 6.
(taken from the court order)
At the court hearing, the prosecutor filed a motion with the court [illegible] to appoint two forensic
examinations in the case: forensic voice analysis and psychological analysis. The [illegible] motion stated that on
February 27, 2015 a crime reconstruction was performed involving the accused [illegible] Tetyutsky V.V., Dvornikov
V.M., and Bashlykov S.O. The said investigative actions were [illegible] on video media. During the pre-trial
investigation, the suspects did not deny their guilt in committing the crimes they are accused of committing. At the
court hearing, however, they claimed they were pressured during the crime reconstruction by the staff of the Security
Service of Ukraine in Kharkiv Province and they were forced into self-incrimination. In order to clarify whether there
are any signs of psychological pressure exerted on the suspects during the crime reconstruction, and whether their
testimony during the crime reconstruction were made under duress, the court has decided to appoint psychological
examination experts from Kharkiv Research Institute of Forensic Furthermore, the court has now completed the examination of evidence in the criminal trial, which included
information contained on the electronic media. Other [illegible] contained in the criminal case record that have not
been examined will not be used as evidence in the criminal trial and the prosecutor does not plan to examine them.
Based on the above, the prosecutor requested an urgent order to be issued, while this hearing is in session, to
review the matter of forensic Golovkov a counsel for the victims, and the victims Sukhorukova [illegible], Tolmacheva M.R., and A.V. have supported the motion filed by the prosecutor.
Defense counsel Tikhonenkov D.A. has objected to granting the motion...
The defense counsel Shapovalov M.V. asked to deny the request noting that the discs in the criminal case record
are not the originals that were used by investigators to make the recordings.
When discussing the prosecutor's motion to appoint the aforesaid examinations, all parties involved in the trial had the right to pose [illegible] questions to the experts but they didn't use that right.
Upon hearing the parties in the criminal case, and having reviewed the case record, the court decided as follows:
Article 1 of the Ukrainian law On Forensic Examination provides that forensic examination is an investigation
conducted by an expert, based on his/her special knowledge of physical objects, phenomena or processes that contain
information regarding facts existing in a case pending in a court or pre-trial investigation.
In accordance with Part 1, Article 332, Part 1.2, Article 242 of the Code of Criminal Procedure of Ukraine, a court
may, upon receiving a [illegible] motion, order a forensic examination by an expert institution, if special skills are
required to clarify facts that are [illegible] to criminal proceedings.
According to Parts 1, 2, Article 22 of the Code of Criminal Procedure of Ukraine, criminal proceedings are
general and adversarial, which allow to have independent [illegible] by the prosecution and defense to support their
legal positions, rights, [illegible], and legitimate interests, as set forth in the Code. [illegible] in criminal proceedings
have equal rights to collect and present to [illegible] things, documents, other evidence, motions, complaints, and also
to exercise [illegible] procedural rights provided under this Code.
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The [illegible] situations,
Examiners and This opinion will deal Part 6 of the said article stipulates that a court, while maintaining objectivity and impartiality, should create
conditions needed for parties to exercise [illegible] procedural rights and perform their procedural duties...
matters of forensic psychological examination.
Forensic psychological examination is an independent branch of forensic examination, which involves the use of
special (professional) knowledge in psychology to establish actual facts to be included in the arguing process in a
criminal case.
Forensic psychological examination encompasses a range of aspects that characterize the subjective side of an act,
the existence, degree of awareness, and management of behavior (ability to control) in criminal and also the state of mind and characteristics of an individual, which are significant for individualizing responsibility
and punishment.
Objects of forensic psychological examination are sources of information about psychological human activities,
results of experimental-and-psychological examination of parties involved in criminal proceedings, criminal case
records, including transcripts of interrogations, letters and other documents, which can be subjected to psychological
expert evaluation, and are material to a criminal case.
According to Parts 6.3-6.4 of the Instructions for Appointing and Carrying out Judicial Forensic Examination
and Expert Reviews, and Scientific Recommendations Regarding Preparation Matters and Appointing Forensic
Expert Examinations, psychological examination determines specific features of mental state and their
exhibitions in personal behavior that are material in law and lead to certain consequences in law. The key goal of
psychological examination is to determine the following in an examined person: individual psychological
characteristics, character traits, key personality traits; motivating factors in one's mental life and behavior; emotional
reactions and states; patterns of mental processes, degree of their development, and their individual characteristics.
Specifically, during the crime reconstruction performed in the presence of the suspects, Tetyutsky V.V.,
Dvornikov V.M., and Bashlykov S.O., they provided information regarding the facts surrounding the commission of
the terrorist act, which occurred on 22.02.2015 at: Kharkiv, Marshal Zhukov Avenue, during a peaceful
rally/processions of people ("March to Honor Victims Killed in Peaceful Euromaidan"). Also, they have admitted their
guilt during the said process. However, during the court review of crime reconstruction transcripts and electronic
media with such recorded crime reconstructions, Dvornikov V.M., Tetyutsky V.V. have withdrawn the said statements
by explaining that they didn't commit the crime they were charged with under Part 3, Article 258 of the Criminal Code
of Ukraine; they claimed that during the investigative actions they provided informative statements that were not
based on what really happened but they were pressured into making such statements by officers of the Field Office of
the Security Service of Ukraine in Kharkiv Province, who forced them into confessions.
Given the fact that information obtained during the crime reconstruction is material to this case because, according
to the statements made by Dvornikov V.M. and Tetyutsky V.V. during the said investigative actions, it appears that
they did commit the criminal offense they are charged with, and also because special skills are needed to determine
whether any psychological pressure was exerted when Dvornikov V.M. and Tetyutsky V.V. were reconstructing the
crime, the judicial panel has found that a forensic psychological examination is needed.
The following questions were posed to the experts:
"1. Are there any psychological features in the behavior of Bashlykov S.O., Tetyutsky V.V., and Dvornikov V.M.
indicating that they acted independently/non-independently during the reconstruction of the event, the terrorist act,
which was committed on 22.02.2015 at: Kharkiv, Marshal Zhukov Avenue, during a peaceful rally/processions of
people ("March to Honor Victims Killed in Peaceful Euromaidan"), and which involved their participation in the
reconstruction of the said crime on 27.02.2015?
2. Does the video of the crime reconstruction, which is dated 27.02.2015 and involves Bashlykov S.O.,
Tetyutsky V.V., and Dvorinkov V.M., exhibits any signs of psychological pressure exerted on them by those who
conducted the said investigative action?
3. Could psychological influence, if any, have significantly changed the free will of the accused Bashlykov
S.O., Tetyutsky V.V., and Dvornikov V.M.?
4. What specific psychological features did the crime reconstruction had, which was performed on 27.02.2015
and involved the accused Bashlykov S.O., Tetyutsky V.V., and Dvornikov V.M., based on the video record of the
crime reconstruction?
with matters related to Tetyutsky V.V.
Matters related to Bashlykov S.O. will be addressed in opinion No. 17 [illegible] of 21.02.2017. Matters related to
Dvornikov V.M. will be addressed in opinion No. 1794/224 of 22.02.2017.
OPINION
1. When Tetyutsky, Viktor Viktorovych, was taking part in the videotaped crime reconstruction, acting as a
suspect, on 27.02.2015, his communicative behavior exhibited psychological features indicating that he was [illegible]
to independently reconstruct the events of the terrorist attack [illegible] occurred on 22.02.2015 at: Kharkiv, Marshal
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information
of investigation: DVD-R RIDATA of Of Forensic Zhukov Avenue, during a peaceful rally/processions of people ("March to Honor Victims Killed in Peaceful
Euromaidan").
2. The video of the crime reconstruction, dated 27.02.2015, which was conducted with the involvement of
Tetyutsky V.V. acting as a suspect, exhibits no signs of psychological pressure exerted by those who took part in the
said investigative action.
3. The video of the crime reconstruction, dated 27.02.2015, which was conducted with the involvement of
Tetyutsky V.V. acting as a suspect, exhibits no signs of psychological pressure exerted on him.
4. When Tetyutsky V.V. was taking part in the videotaped crime reconstruction, acting as a suspect, on
27.02.2015, his psychological features were [illegible] by signs of communicative interaction, which indicates that his
individual psychological features were "guarded" in communications. During the crime reconstruction, Tetyutsky
V.V. was for the most part, asked open-ended questions formulated by a scenario of plot fragments outlining their
contextual direction and directing the construction of the key algorithms in the suspect's messages in accordance with
the specifics of the investigative action, and alternative questions took the form of clarification for the provided by the suspect. Leading questions comprise a very small portion of the total posed questions and they didn't
have impact on the reconstructive efforts by Tetyutsky V.V.
In the process of reconstructing the events during the aforementioned videotaped investigative action, which were
related to the crimes he is charged with, communicative activities of Tetyutsky V.V. were characterized by [illegible]
behavioral manifestations. Tetyutsky V.V. was meaningful, extensive and [illegible] and clearly reconstructed routes,
visual signs [illegible] of the area, specific actions taken by Dvornikov V.M. and Bashlykov S.O. during [illegible]
planting and arming the explosive device [illegible] circumstances surrounding the movement of rally; situation and
circumstances regarding the departure [illegible]. In the reconstruction of V.V. Tetyutsky's own actions during
[illegible] before planting and arming the explosive device [illegible], and during the reconstruction of his own actions
related to [illegible] mobile phone, in the communicative activities of the suspect [illegible] pronounced reduction of
details, meaningful restriction of judgments, [illegible] indicative facial expressions and pantomime, references to
[illegible] visual perception of the explosive device by him.
[illegible] these differences in the verbal and nonverbal products by Tetyutsky V.V., his communicative behavior
during this investigative [illegible] indicate arbitrary adjustment of his reconstructive [illegible] and tentative
communicative behavior, which is a variety of [illegible] actions.
Court-appointed expert [Signature] T.M. Egorova
Court-appointed expert [Signature] T.V. Savkina
Court-appointed expert [Signature] O.O. Slipets
[Seal: Ministry Justice of Ukraine; No. 02883133; Honorable Professor M.S. Bocarius Kharkiv Research Institute
Of Forensic Examinations]
Addenda: Appendix A - (typed text of the video recording of the crime reconstruction held on 27.02.2015, which
was conducted at the detention center of the Police Field Office in Kharkiv Province and involved the participation of
Tetyutsky V.V., the suspect) on 3 pages;
Appendix B - (typed text of the video recording of the crime reconstruction held on 27.02.2015, which was
conducted at the crime scene and involved the participation of Tetyutsky V.V., the suspect) on 7 pages.
Reference: The forensic examination opinion is returned with the materials that were provided for the
compact disk, 16x 4.7 Gb 120 min, 1 piece, in a paper envelope with the
accompanying text on one side describing the envelope contents, and also signatures of forensic experts and a square
stamp imprint: "Kharkiv Research Institute Of Forensic Examinations; Examined material No. 11". The envelope is
sealed with three prints of the same stamp.
[Seal: Ministry Justice of Ukraine; No. 02883133; Honorable Professor M.S. Bocarius Kharkiv Research Institute
Examinations]
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Annex 32
Expert Opinion No. 8-ZVZ, drafted by the Kharkiv Centre for Forensic Science and
Investigations, Ministry of Internal Affairs of Ukraine (21 February 2017)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
Annex 32
Expert Opinion No. 8-ZVZ, drafted by the Kharkiv Centre for Forensic Science and
Investigations, Ministry of Internal Affairs of Ukraine (21 February 2017)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
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KHARKIV CENTRE FOR FORENSIC SCIENCE 34 Yaroslayska expert center The city of Kharkiv 8-ZVZ
regarding an [illegible] O.I., in the criminal matter recorded Viktorovych environment," which was granted L.V. Ukraine in Kharkiv Province and 1) 2) 11
COPY
THE MINISTRY OF INTERNAL AFFAIRS OF UKRAINE
AND INVESTIGATIONS
Kovtun St., 1/29 Yaroslavska St., Kharkiv, 61036, tel/fax (057)721-15-90, (0572) 7308-402,
[email protected]
EXPERT OPINION
21.02.2017
No. On February 7, 2017, Audio and Video Investigations Group of the Information Technology Research Department
at Kharkiv Center for Forensic Science and Investigations of the Ministry of Internal Affairs of Ukraine received an
order issued by Frunze District Court in Kharkiv, which included a cover letter dated February 7, 2017, No. G-08,
forensic examination. The order was issued by the court panel comprised of: Presiding Judge
Gorpynych O.V., bench judges Bondareva I.V., and Shevchenko G.S., in the presence of court reporter Denysenko
on February 22, 2015 in the Unified Registry of Pre-Trial Investigations under
No. 42015220000000115.
The forensic examination was assigned to Leonid Dombrovsky, Deputy Head of the Department, and
the Head of the Computer and Technical Research Sector of Information Technology Research Department at Kharkiv
Center for Forensic Science and Investigations of the Ministry of Internal Affairs of Ukraine. Mr. Dombrovsky has a
technical degree, a legal degree, and forensic expert qualifications. He is authorized to perform forensic examination
of audio and video recordings for the following examiner specialties: 7.1 "Technical examination of video and sound
recording media and devices," 7.2 "Speaker examination based on physical speech parameters, acoustic channels, and
by EKK of the Ministry of Internal Affairs of Ukraine on 15.04.2005 (certificate
No. [illegible], confirmed on 21.05.2010 (certificate No. 264), confirmed on 21.04.2015 (certificate No. 367); forensic
examiner experience - since 1995.
I have been advised about penalties for knowingly falsifying opinions or refusing, without [illegible] excuse, to
perform my duties under Articles 384, 385 of the Criminal Code of Ukraine.
[Signature] Dombrovsky
[Seal: Ministry of Internal Affairs of Ukraine; Kharkiv Centre for Forensic Science and Investigations No. 31]
Facts in the case (as known from the investigation request):
The aforementioned criminal case is pending before Frunze District Court in Kharkiv.
At the court hearing, the prosecutor filed a motion with the court seeking to appoint two forensic examinations in
the case: forensic voice analysis and psychological analysis. The [illegible] motion stated that on February 27, 2015 a
crime reconstruction was performed involving the accused (suspects) Tetyutsky V.V., Dvornikov V.M., and
Bashlykov S.O. The said investigative actions were recorded on video media. During the pre-trial investigation, the
suspects did not deny their guilt in committing the crimes they are accused of committing. At the court hearing,
however, they claimed they were pressured during the crime reconstruction by the staff of the Security Service of
they were forced into self-incrimination. In order to clarify whether there are any
signs of psychological pressure exerted on the suspects during the crime reconstruction, and whether their testimony
during the crime reconstruction were made under duress, the court has decided to appoint psychological examination
experts from Kharkiv Center for Forensic Science and Investigations to address the following matters:
1) are there any psychological features in the behavior of Bakshlykov S.O., Tetyutsky V.V., and
Dvornikov V.M. indicating that they acted independently/non-independently during the reconstruction of the event,
the terrorist act committed on February 22, 2015, when such crime reconstruction was performed with their
involvement on February 27, 2015;
2) does the video of the crime reconstruction, which is dated 27.02.2015 and involves Bashlykov S.O.,
Tetyutsky V.V., and Dvorinkov V.M., exhibit any signs of psychological pressure exerted on them by those who
conducted the said investigative action.
For the purposes of forensic examination, a videotape was provided with a video record of the crime
reconstruction (p. 76, volume 8), and a videotape with a video record of the crime reconstruction contained in p. 52
and p. 9, volume No. 8.
Also, the pre-trial investigation included undercover investigative actions focused on the suspects Tetyutsky V.V.
and Dvorinkov V.M. pursuant to the order of the Court of Appeals in Kharkiv Province, dated 27.02.2015.
The results of undercover investigative actions are provided in the transcripts of volume 8, p. 215-220, 222-223,
and discs with audio files are also added in volume 8, p. 221, 224.
When audio files were played at the trial, the accused Tetyutsky V.V. and Dvorinkov V.M. claimed that the voices
in the audio recordings are not theirs. In order to determine whose voices are represented in the text typed in the
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Affairs of Ukraine in Kharkiv The 2) included
O.M., [illegible] M.R., and Didyk A.V.
2. Court in and examination.
22
undercover investigation transcripts, the court has decided to conduct a forensic voice analysis in the pending trial,
which was assigned to experts from Kharkiv Center for Forensic Science and Investigations of the Ministry of Internal
Province.
following questions were posed to the experts:
1) Are the audio recordings contained on the disks and in audio files, which were obtained in the course of
undercover investigation and provided for forensic examination, suitable to establish the identity of a person who
speaks the text provided in the transcript?
Do the voices in the audio files, which were recorded as text in the undercover investigation transcripts
and purportedly belong to Tetyutsky V.V. and Dvornikov V.M., really belong to Tetyutsky V.V. and Dvornikov
V.M.?
3) Are there any signs of editing, selective overlays or voice changes in the audio provided for forensic
examination?
The prosecutor has noted that such forensic examinations were not performed during the investigation
because, at that time, the suspects Tetyutsky V.V., Dvornikov V.M., and Bashlykov S.O. have been admitting their
guilt in the crimes and did not dispute the information provided by them during the crime reconstruction conducted
with their involvement.
Furthermore, the court has now completed the examination of evidence in the criminal trial, which information contained on the electronic media. Other [illegible] contained in the criminal case record and have not
been examined, is not used as [illegible] in the criminal trial and the prosecutor does not [illegible] to examine them.
Based on the above, the prosecutor requested an urgent order to be issued, while this hearing is in session, to
review the matter of forensic examination.
Golovkov a counsel for the victims, and the victims Sukhorukova T.M., have supported the motion filed by the prosecutor.
The defense counsel Tikhonenkov D.A. has objected to granting the motion and also requested a break in the
hearing to prepare for arguments regarding this motion.
The defense counsel Shapovalov M.V. asked to deny the request noting that the discs in the criminal case record
are not the originals that were used by investigators to make the recordings.
When discussing the prosecutor's motion to appoint the aforesaid examinations, all parties involved in the criminal
trial had the right to pose their questions to the experts but they didn't use that right.
Given the fact that information obtained during the crime reconstruction is material to this case because, according
to the statements made by Dvornikov V.M. and Tetyutsky V.V. during the said investigative actions, it appears that
they did commit the criminal offense they are charged with, and also because special skills are needed to determine
whether any psychological pressure was exerted when Dvornikov V.M. and Tetyutsky V.V. were reconstructing the
crime, the judicial panel has found that a forensic psychological examination is needed.
The following questions were posed to the experts:
1. Are there any signs of editing, selective overlays or voice changes in the audio records submitted for the
examination?
Are the audio recordings contained on the disks and in audio files, which were obtained in the course of
undercover investigation and provided for forensic examination, suitable to establish the identity of a person who
speaks the text provided in the transcript?
3. Does the audio recording provided for forensic examination, which was recorded on a DVD-R laser disc
No. 2925/GVZND (number of files on the disc - 11, disc capacity - 66.4 MB), contain the voice of Dvornikov V.M.,
as it is identified in the transcript produced by the undercover audio surveillance in a public place, dated 25.03.2015,
and designated as "O"?
4. Does the audio recording provided for forensic examination, which was recorded on a laser disc No.
2922/GVZDN (number of files on the disc - 6, disc capacity - 87.4 MB), contain the voice of Tetyutsky V.V., as it is
identified in the transcript produced by the undercover audio surveillance in a public place, dated 25.03.2015, and
designated as "O"?
In order to determine the matters presented for forensic examination, and in accordance with Article 69 of the
Code of Criminal Procedure of Ukraine, ref. No. 19/121/13-562, dated 08.02.2017 and the order of Frunze District
Kharkiv regarding forensic examination, the expert No. 8 filed a motion to obtain samples of Tetyutsky V.V.
Dvornikov V.M. voices and speech.
OPINIONS:
1. There are no signs of editing, selective [illegible] or voice changes in the audio records submitted for
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2015030521233500313120m18.33
2. The audio recordings submitted for examination are contained in the following audio files:
201503041009060049300m18.wav, 1503051848210012520m18.wav, 201503051903200012540m18.wav,
201503051930000012580m18.wav, 201503051958540012620m18.wav, 201503052043540012680m18.wav on a
laser disk RIDATA DVD-R labeled 2925/GVZND sealed, 27.02.15, and 2015030521233500313120m18.wav on a
laser disk RIDATA DVD-R labeled 2922/GVZND sealed, 27.02.15, which were obtained in the undercover
investigation, are suitable for identifying a speaker by his voice and by the text provided in the transcripts: undercover
investigation transcript of recording made in a public place, dated 25.03.2015, No. 70/5-5967, of 26.03.2015, and
undercover investigation transcript of recording made in a public place, dated 25.03.2015, No. 70/5-5966, of
26.03.2015.
3. The audio recordings provided for forensic examination, which were made on a RIDATA DVD-R laser
disc labeled No. 2925/GVZND (number of files on the disc - 11, disc capacity - 66.4 MB), specifically the files
201503041009060049300m18.wav, 1503051848210012520m18.wav, 201503051903200012540m18.wav,
201503051930000012580m18.wav, 201503051958540012620m18.wav, and 201503052043540012680m18.wav,
contain the voice of Dvornikov V.M., who was identified as such in the transcript produced by the undercover audio
surveillance in a public place, dated 25.03.2015, and designated as "O."
4. The audio recordings provided for forensic examination, which were made [illegible] on a RIDATA DVDR
laser disc labeled No. 2922/GVZDN (number of files on the disc - 6, disc capacity - 87.4 MB), specifically the file
2015030521233500313120ml8.wav, contains the voice of Tetyutsky [illegible], who was identified as such in the
transcript produced by the undercover audio surveillance in a public place, dated 25.03.2015, and designated as "O."
Image 15. General view of special package No. 2316964 (front side) of the Expert Service of the Ministry of
Internal Affairs of Ukraine.
Image 16. General [illegible] of special package No. 2316964 (back side) of the Expert Service of the Ministry of
Internal Affairs of Ukraine.
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Annex 33
Expert Opinion of Forensic Psychological Examination Commission No. 1793/223,
drafted by the Forensic Research Center in Kharkiv Named After M.S. Bokarius,
Ministry of Justice of Ukraine (21 February 2017)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
Annex 33
Expert Opinion of Forensic Psychological Examination Commission No. 1793/223,
drafted by the Forensic Research Center in Kharkiv Named After M.S. Bokarius,
Ministry of Justice of Ukraine (21 February 2017)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
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KHARIUV 8-a Zolochyivska Expert Opinion of Forensic Psychological Examination Commission
I. Forensic Examinations,
Examinations...
examination.
O.M., and Didyk A.V.
11
MINISTRY OF JUSTICE OF UKRAINE
FORENSIC RESEARCH CENTER IN KHARKIV NAMED AFTER M.S. BOKARIUS
St., Kharkiv, 61177, tel. (057) 372-12-20, tel./fax (057) 372-20-01.
E-mail: [email protected], Web: http://hniise.gov.ua,
Unified National Registry of Companies and Organizations Code - 02883133
No. 1793/223
Based on the records of criminal case No. 645/3 612/15-k
(No. 1-kp/645/48/17)
Drafted on 21.02.2017
INTRODUCTION
On 08.02.2017 Honorable Professor M.S. Bocarius Kharkiv Research Institute Of pursuant to the ruling of 07.02.2017 issued by Frunze District Court in Kharkiv (presiding judge: Gorpynych O.V.,
bench judges: Bondareva I.V., Shevchenko G.S.), received 2 (two) CDs and a mini DV video tape containing video
recording of crime reconstructions, in which the accused Bashlykov S.O., Dvornikov V.M., and Tetyutsky V.V. took
place, dated 27.02.2015.
The objects to be examined were received by the lab from the clerk office. The packaging was not compromised.
The objects to be examined are placed in sealed white paper envelopes bearing accompanying inscriptions in blue
ink. The texts of the accompanying inscriptions are provided below and shown on photographs No. 1, 2, 3, 4, 5, and 6.
Summary of the case facts
(taken from the court order)
"... At the court hearing, the prosecutor filed a motion with the court seeking to appoint two forensic examinations
in the case: forensic voice analysis and psychological analysis. In support of the motion, it was stated that a crime
reconstruction was performed on 27.02.2015 involving the accused (suspect) Tetyutsky V.V., Dvornikov V.M., and
Bashlykov S.O. The said investigative actions were recorded on video media. During the pre-trial investigation, the
suspects did not deny their guilt in committing the crimes they are accused of committing. At the court hearing,
however, they claimed they were pressured during the crime reconstruction by the staff of the Security Service of
Ukraine in Kharkiv Province and they were forced into self-incrimination. In order to clarify whether there are any
signs of psychological pressure exerted on the suspects during the crime reconstruction, and whether their testimony
during the crime reconstruction were made under duress, the court has decided to appoint psychological examination
experts from Kharkiv Research Institute of Forensic Furthermore, the court has now completed the examination of all evidence in the criminal trial, which included
information contained on the electronic media. Other disks contained in the criminal case record that have not been
examined will not be used as evidence in the criminal trial and the prosecutor does not plan to examine them.
Based on the above, the prosecutor requested an urgent order to be issued, while this hearing is in session, to
review the matter of forensic Golovkov a counsel for the victims, and the victims Sukhorukova T.M., Tolmacheva M.R., have supported the motion filed by the prosecutor.
Defense counsel Tikhonenkov D.A. has objected to granting the motion...
The defense counsel Shapovalov M.V. asked to deny the request noting that the discs in the criminal case record
are not the originals that were used by investigators to make the recordings.
When discussing the prosecutor's motion to appoint the aforesaid examinations, all parties involved in the criminal
trial had the right to pose their questions to the experts but they didn't use that right.
Upon hearing the parties in the criminal case, and having reviewed the case record, the court decided as follows:
Article 1 of the Ukrainian law On Forensic Examination provides that forensic examination is an investigation
conducted by an expert, based on his/her special knowledge of physical objects, phenomena or processes that contain
information regarding facts existing in a case pending in a court or pre-trial investigation.
In accordance with Part 1, Article 332, Part 1.2, Article 242 of the Code of Criminal Procedure of Ukraine, a court
may, upon receiving a prosecutor motion, order a forensic examination by an expert institution, if special skills are
required to clarify facts that are material to criminal proceedings.
According to Parts 1, 2, Article 22 of the Code of Criminal Procedure of Ukraine, criminal proceedings are
general and adversarial, which allow to have independent arguments by the prosecution and defense to support their
legal positions, rights, freedoms, and legitimate interests, as set forth in the Code. Parties in criminal proceedings
have equal rights to collect and present to a court things, documents, other evidence, motions, complaints, and also to
exercise other procedural rights provided under this Code.
- 435 -
The [illegible] situations,
This opinion will deal 22
Part 6 of the said article stipulates that a court, while maintaining objectivity and impartiality, should create
conditions needed for parties to exercise their procedural rights and perform their procedural duties...
matters of forensic psychological examination.
Forensic psychological examination is an independent branch of forensic examination, which involves the use of
special (professional) knowledge in psychology to establish actual facts to be included in the arguing process in a
criminal case.
Forensic psychological examination encompasses a range of aspects that characterize the subjective side of an act,
the existence, degree of awareness, and management of behavior (ability to control) in criminal and also the state of mind and characteristics of an individual, which are significant for individualizing responsibility
and punishment.
Objects of forensic psychological examination are sources of information about psychological human activities,
results of experimental-and-psychological examination of parties involved in criminal proceedings, criminal case
records, including transcripts of interrogations, letters and other documents, which can be subjected to psychological
expert evaluation, and are material to a criminal case.
According to Parts 6.3-6.4 of the Instructions for Appointing and Carrying out Judicial Forensic Examination and
Expert Reviews, and Scientific Recommendations Regarding Preparation Matters and Appointing Forensic Examiners
and Expert Examinations, psychological examination determines specific features of mental state and their exhibitions
in personal behavior that are material in law and lead to certain consequences in law. The key goal of psychological
examination is to determine the following in an examined person: individual psychological characteristics, character
traits, key personality traits; motivating factors in one's mental life and behavior; emotional reactions and states;
patterns of mental processes, degree of their development, and their individual characteristics.
Specifically, during the crime reconstruction performed in the presence of the suspects, Tetyutsky V.V.,
Dvornikov V.M., and Bashlykov S.O., they provided information regarding the facts surrounding the commission of
the terrorist act, which occurred on 22.02.2015 at: Kharkiv, Marshal Zhukov Avenue, during a peaceful
rally/processions of people ("March to Honor Victims Killed in Peaceful Euromaidan"). Also, they have admitted their
guilt during the said process. However, during the court review of crime reconstruction transcripts and electronic
media with such recorded crime reconstructions, Dvornikov V.M., Tetyutsky V.V. have withdrawn the said statements
by explaining that they didn't commit the crime they were charged with under Part 3, Article 258 of the Criminal Code
of Ukraine; they claimed that during the investigative actions they provided informative statements that were not
based on what really happened but they were pressured into making such statements by officers of the Field Office of
the Security Service of Ukraine in Kharkiv Province, who forced them into confessions.
Given the fact that information obtained during the crime reconstruction is material to this case because, according
to the statements made by Dvornikov V.M. and Tetyutsky V.V. during the said investigative actions, it appears that
they did commit the criminal offense they are charged with, and also because special skills are needed to determine
whether any psychological pressure was exerted when Dvornikov V.M. and Tetyutsky V.V. were reconstructing the
crime, the judicial panel has found that a forensic psychological examination is needed.
The following questions were posed to the experts:
"1. Are there any psychological features in the behavior of Bashlykov S.O., Tetyutsky V.V., and Dvornikov V.M.
indicating that they acted independently/non-independently during the reconstruction of the event, the terrorist act,
which was committed on 22.02.2015 at: Kharkiv, Marshal Zhukov Avenue, during a peaceful rally/processions of
people ("March to Honor Victims Killed in Peaceful Euromaidan"), and which involved their participation in the
reconstruction of the said crime on 27.02.2015?
2. Does the video of the crime reconstruction, which is dated 27.02.2015 and involves Bashlykov S.O.,
Tetyutsky V.V., and Dvorinkov V.M., exhibits any signs of psychological pressure exerted on them by those who
conducted the said investigative action?
3. Could psychological influence, if any, have significantly changed the free will of the accused Bashlykov
S.O., Tetyutsky V.V., and Dvornikov V.M.?
4. What specific psychological features did the crime reconstruction had, which was performed on 27.02.2015
and involved the accused Bashlykov S.O., Tetyutsky V.V., and Dvornikov V.M., based on the video record of the
crime reconstruction?
with matters related to Bashlykov S.O.
- 436 -
Opinion
Euromaidan").
S.O. indicate object-oriented communicative behavior, as a subtype of independent activity.
T.M. Slipets
Of Forensic investigation: DVD-R stamp imprint: Kharkiv Research Of Forensic 33
1. For the most part, when Bashlykov, Sergiy Oleksandrovych was taking part in the videotaped crime
reconstruction, acting as a suspect, on 27.02.2015, his communicative behavior exhibited psychological features
indicating that he was able to independently reconstruct the events of the terrorist attack that occurred on 22.02.2015
at: Kharkiv, Marshal Zhukov Avenue, during a peaceful rally/processions of people ("March to Honor Victims Killed
in Peaceful The only exception was the reconstruction of the object (trash can) by Bashlykov S.O. as the place where he threw
away the Samsung mobile phone. In this instance, Bashlykov S.O. did not act independently when he reconstructed
the place.
2. For the most part, the video of the crime reconstruction, dated 27.02.2015, which was conducted with the
involvement of Bashlykov S.O. acting as a suspect, exhibits no signs of psychological pressure exerted by those who
took part in the said investigative action.
The only exception was the reconstruction of the object (trash can) by Bashlykov S.O. as the place where he threw
away the Samsung mobile phone. In this instance, Bashlykov S.O. did not act independently when he reconstructed
the place. It was created by a leading question.
3. For the most part, the video of the crime reconstruction, dated 27.02.2015, which was videotaped and
conducted with the involvement of Bashlykov S.O. acting as a suspect, exhibits no signs of psychological pressure
exerted on him.
The only exception was the reconstruction of the object [illegible] by Bashlykov S.O. as the place where he threw
away the Samsung mobile phone. In this instance, Bashlykov S.O. did not act independently when he [illegible] the
place. It was created by a suggestive question and, therefore, it was not independent.
4. When Bashlykov S.O. was taking part in the videotaped crime reconstruction, acting as a suspect, on
27.02.2015, his psychological features were characterized by signs of communicative interaction, which indicates that
S.O. Bashlykov's individual psychological features were restrictively communicative. During the crime
reconstruction, the suspect was, for the most part, asked open-ended questions formulated by a scenario of plot
fragments outlining their contextual direction and directing the construction of the key algorithms in the S.O.
Bashlykov's messages in accordance with the specifics of the investigative action, and alternative questions took the
form of clarification for the information provided by the suspect. There were no leading questions. Leading questions
make up a very small portion of the total number of posed questions and they did not have any significant impact on
the key reconstructive actions of Bashlykov S.O.
In the process of reconstructing the events related to the crimes he is accused of, and during the aforestated
videotaped investigative action, S.O. Bashlykov's communicative activities, for the most part, were characterized by
an established volitional control over his communicative behavior, active attention, emotionally restrained
involvement in the self-guided reconstruction process, proactive use of words to deliver specific details, clarifications,
references to immediate sensations, and references to his own awareness of the reconstructed events. Nonverbal
reactions exhibited by Bashlykov S.O. during the reconstruction of events have some meaning and they are congruent
with his verbal messages.
When reconstructing the environment and circumstances surrounding the events related to his own actions when
sending an SMS message to V.V. Tetyutsky's mobile phone, and especially the self-awareness of his role and the
result of his actions; the disassembly and disposal of the mobile phone, such communicative activities of Bashlykova
          
Court-appointed expert [Signature] Egorova
Court-appointed expert [Signature] O.O. Court-appointed expert [Signature] T.V. Savkina
[Seal: Ministry of Justice of Ukraine; No. 02883133; Honorable Professor M.S. Bocarius Kharkiv Research Institute
Examinations]
Addenda: Appendix A - a working transcript (typed text of the video recording of the crime reconstruction held
on 27.02.2015, which was conducted at the crime scene and involved the participation of Bashlykov S.O., the suspect)
on 9 pages.
Reference: The forensic examination opinion is returned with the materials that were provided for the
RIDATA compact disk, 16x 4.7 Gb 120 min, 1 piece, in a paper envelope with the
accompanying text on one side describing the envelope contents, and also signatures of forensic experts and a square
Institute Of Forensic Examinations; Examined material No. 11. The envelope is
sealed with three prints of the same stamp.
[Seal: Ministry of Justice of Ukraine; No. 02883133; Honorable Professor M.S. Bocarius Kharkiv Research Institute
Examinations]
- 437 -
- 438 -
Annex 34
Expert Opinion of Forensic Psychological Examination Commission No. 1794/224,
drafted by the Forensic Research Center in Kharkiv Named After M.S. Bokarius,
Ministry of Justice of Ukraine (22 February 2017)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
Expert Opinion of Forensic Psychological Examination Commission No. 1794/224,
drafted by the Forensic Research Center in Kharkiv Named After M.S. Bokarius,
Ministry of Justice of Ukraine (22 February 2017)
This excerpt has been translated from its original language
into English, an official language of the Court, pursuant to
Rules of the Court, Article 51. A copy of the whole document
has been deposited with the Registry.
- 439 -
- 440 -
8-a St., 61177, teL Expert Opinion of Forensic Psychological Examination Commission
I. 11
MINISTRY OF JUSTICE OF UKRAINE
ORENSIC RESEARCH CENTER IN KHARKIV NAMED AFTER M.S. BOKARIUS
Zolochyivska Kharkiv, tel. (057) 372-12-20, tel./fax (057) 372-20-01.
E-mail: [email protected], Web: http://hniise.gov.ua,
Unified National Registry of Companies and Organizations Code - 02883133
No. 1794/224
Based on the records of criminal case No. 645/3612/15-k
(No. 1-kp/645/48/17)
Drafted on 22.02.2017
INTRODUCTION
On 08.02.2017 Honorable Professor M.S. Bocarius Kharkiv Research Institute Of Forensic Examinations,
pursuant to the ruling of 07.02.2017 issued by Frunze District Court in Kharkiv (presiding judge: Gorpynych O.V.,
bench judges: Bondareva I.V., Shevchenko G.S.), received 2 (two) CDs and a mini DV video tape containing video
recording of crime reconstructions, in which the accused Bashlykov S.O., Dvornikov V.M., and Tetyutsky V.V. took
place, dated 27.02.2015.
The objects to be examined were received by the lab from the clerk office. The packaging was not
compromised.
The objects to be examined are placed in sealed white paper envelopes bearing accompanying inscriptions in
blue ink. The texts of the accompanying inscriptions are provided below and shown on photographs No. 1, 2, 3, 4, 5,
and 6.
Summary of the case facts
(taken from the court order)
"... At the court hearing, the prosecutor filed a motion with the court seeking to appoint two forensic examinations
in the case: forensic voice analysis and psychological analysis. In support of the motion, it was stated that a crime
reconstruction was performed on 27.02.2015 involving the accused (suspect) Tetyutsky V.V., Dvornikov V.M., and
Bashlykov S.O. The said investigative actions were recorded on video media. During the pre-trial investigation, the
suspects did not deny their guilt in committing the crimes they are accused of committing. At the court hearing,
however, they claimed they were pressured during the crime reconstruction by the staff of the Security Service of
Ukraine in Kharkiv Province and they were forced into self-incrimination. In order to clarify whether there are any
signs of psychological pressure exerted on the suspects during the crime reconstruction, and whether their testimony
during the crime reconstruction were made under duress, the court has decided to appoint psychological examination
experts from Kharkiv Research Institute of Forensic Examinations...
Furthermore, the court has now completed the examination of all evidence in the criminal trial, which included
information contained on the electronic media. Other disks contained in the criminal case record that have not been
examined are not used as evidence in the criminal trial and the prosecutor does not plan to examine them.
Based on the above, the prosecutor requested an urgent order to be issued, while this hearing is in session, to
review the matter of forensic examination.
Golovkov O.M., a counsel for the victims, and the victims Sukhorukova T.M., Tolmacheva M.R., and Didyk A.V.
have supported the motion filed by the prosecutor.
Defense counsel Tikhonenkov D.A. has objected to granting the motion...
The defense counsel Shapovalov M.V. asked to deny the request noting that the discs in the criminal case record
are not the originals that were used by investigators to make the recordings.
When discussing the prosecutor's motions to appoint the aforesaid examinations, all parties involved in the
criminal trial had the right to pose questions to the experts but they didn't use that right.
Upon hearing the parties in the criminal case, and having reviewed the case record, the court decided as follows:
Article 1 of the Ukrainian law On Forensic Examination provides that forensic examination is an investigation
conducted by an expert, based on his/her special knowledge of materials in objects, phenomena or processes that
contain information regarding facts existing in a case pending in a court or pre-trial investigation.
In accordance with Part 1, Article 332, Part 1.2, Article 242 of the Code of Criminal Procedure of Ukraine, a court
may, upon receiving a prosecutor motion, order a forensic examination by an expert institution, if special skills are
required to clarify facts that are [illegible] to criminal proceedings.
According to Parts 1, 2, Article 22 of the Code of Criminal Procedure of Ukraine, criminal proceedings are
general and adversarial, which allow to have independent [illegible] by the prosecution and defense to support their
legal positions, rights [illegible] legitimate interests, as set forth in the Code. [illegible] in criminal proceedings have
- 441 -
[illegible] in forensic Appointing Forensic examiners and
27.02.2015?
22
equal rights to collect and present [illegible] things, documents, other evidence, motions, complaints, and also to
exercise [illegible] procedural rights provided under this Code.
Part 6 of the said article stipulates that a court, while maintaining objectivity and impartiality, should create
conditions needed for parties to exercise their procedural rights and perform their procedural duties...
The matters of forensic psychological examination.
Forensic psychological examination is an independent branch of forensic examination, which involves the use of
special (professional) knowledge in psychology to establish actual facts to be included in the arguing process in a
criminal case.
Forensic psychological examination encompasses a range of aspects that characterize the subjective side of an act,
the existence, degree of awareness, and management of behavior (ability to control) in criminal [illegible] situations,
and also the state of mind and characteristics of an individual, which are significant for [illegible] responsibility and
punishment.
psychological examination are sources of information about [illegible] human activities,
results of experimental-and-psychological [illegible] parties involved in criminal proceedings, criminal case records,
[illegible] in interrogations, letters and other documents, which can be subjected to psychological [illegible]
evaluation, and are material to a criminal case.
According to Parts 6.3-6.4 of the Instructions for Appointing and Carrying out judicial [illegible] and expert
reviews, and Scientific Recommendations Regarding [illegible] Matters and expert examinations, [illegible] determines specific features of mental state and their [illegible] in personal behavior
that are material in law and lead to certain [illegible] consequences. The key goal of psychological examination is to
determine [illegible] in a person: individual psychological characteristics, character traits, [illegible] personality traits;
motivating factors in one's mental life and [illegible]; emotional reactions and states; patterns of mental [illegible],
degree of their development, and their individual characteristics.
Specifically, during the crime reconstruction performed in the presence of the suspects, Tetyutsky V.V.,
Dvornikov V.M., and Bashlykov S.O., they provided information regarding the facts surrounding the commission of
[illegible] act, which occurred on 22.02.2015 at: Kharkiv, Marshal Zhukov Avenue, during a peaceful
rally/processions of people ("March to Honor Victims Killed in Peaceful Euromaidan"). Also, they have admitted their
guilt during the said process. However, during the review in a court [illegible] of crime reconstruction transcripts and
electronic media with such recorded crime reconstructions, Dvornikov V.M., Tetyutsky V.V. [illegible] the said
statements by explaining that they didn't commit the crime they were charged with under Part 3, Article 258 of the
Criminal Code of Ukraine; they claimed that during the investigative actions they provided informative statements that
were not based on what really happened but they were pressured into making such statements by officers [illegible] of
the Security Service of Ukraine in Kharkiv Province, who forced them into confessions.
Given the fact that information obtained during the crime reconstruction is material to this case because, according
to the statements made by Dvornikov V.M. and Tetyutsky V.V. during the said investigative actions, it appears that
they did commit the criminal offense they are charged with, and also because special skills are needed to determine
whether any psychological pressure was exerted when Dvornikov V.M. and Tetyutsky V.V. were reconstructing the
crime, the judicial panel has found that a forensic psychological examination is needed.
The following questions were posed to the experts:
"1. Are there any psychological features in the behavior of Bashlykov S.O., Tetyutsky V.V., and Dvornikov V.M.
indicating that they acted independently/non-independently during the reconstruction of the event, the terrorist act,
which was committed on 22.02.2015 at: Kharkiv, Marshal Zhukov Avenue, during a peaceful rally/processions of
people ("March to Honor Victims Killed in Peaceful Euromaidan"), and which involved their participation in the
reconstruction of the said crime on 2. Does the video of the crime reconstruction, which is dated 27.02.2015 and involves Bashlykov S.O.,
Tetyutsky V.V., and Dvorinkov V.M., exhibits any signs of psychological pressure exerted on them by those who
conducted the said investigative action?
3. Could psychological influence, if any, have significantly changed the free will of the accused Bashlykov
S.O., Tetyutsky V.V., and Dvornikov V.M.?
4. What specific psychological features did the crime reconstruction had, which was performed on 27.02.2015
and involved the accused Bashlykov S.O., Tetyutsky V.V., and Dvornikov V.M., based on the video record of the
crime reconstruction?
This opinion will deal with matters related to Dvornikov V.M.
- 442 -
Opinion
4. Slipets
"Kharkiv Research Institute Of Forensic of 33
1. When Dvornikov Volodymyr Mykolayovych was taking part in the videotaped crime reconstruction, acting as a
suspect, on [illegible].02.2015, his communicative behavior exhibited psychological features indicating that he was
able to independently reconstruct the events of the terrorist attack that occurred on 22.02.2015 at: Kharkiv, Marshal
Zhukov Avenue, during a peaceful rally/processions of people ("March to Honor Victims Killed in Peaceful
Euromaidan").
2. The video of the crime reconstruction, dated 27.02.2015, which was conducted with the involvement of
Dvornikov V.M. acting as a suspect, exhibits no signs of psychological pressure exerted by those who took part in the
said investigative action.
3. The video of the crime reconstruction, dated 27.02.2015, which was conducted with the involvement of
Dvornikov V.M. acting as a suspect, exhibits no signs of psychological pressure exerted on him.
When Dvornikov V.M. was taking part in the videotaped crime reconstruction, acting as a suspect, on
27.02.2015, his psychological features were characterized by signs of communicative interaction, which indicates that
his individual psychological features were actively communicative. During the crime reconstruction, Dvornikov V.M.
was, for the most part, asked open-ended questions formulated by a scenario of plot fragments outlining their
contextual direction and directing the construction of the key algorithms in the suspect's messages in accordance with
the specifics of the investigative action, and alternative questions took the form of clarification for the information
provided by the suspect. There were no leading questions.
In the process of reconstructing the events during the aforementioned videotaped investigative action, which were
related to the crimes he is charged with, communicative activities of Dvornikov V.M. were characterized by richness
of verbal production with specific details, consistency, and active behavioral (nonverbal) manifestations: he
reconstructs the environment and facts related to the events when the explosive device was received with meaningful
and non-verbal expressions; he reconstructs the routes in detail, specifies visual features (landmarks) in the area, and
features of reconstructed objects; he provides a detailed description of specific actions taken by Tetyutsky V.V. and
Bashlykov S.S. during the time period when the explosive device was planted and armed; he provides a detailed
description of his own actions during the time period when the explosive device was planted and armed; he
reconstructs in detail the situation and circumstances surrounding the events during the departure from the explosion
site. Means of non-verbal communication exhibited by Dvornikov V.M. are not typical for forced communications.
Throughout the entire crime reconstruction, verbal and nonverbal production of Dvornikov V.M. show pronounced
signs of psychological coherence (congruence) and independent reproduction of events.
Court-appointed expert [Signature] T.M. Egorova
Court-appointed expert [Signature] O.O. Court-appointed expert [Signature] T.V. Savkina
[Seal: Ministry of Justice of Ukraine; No. 02883133; Honorable Professor M.S. Bocarius Kharkiv Research Institute
Of Forensic Examinations]
Addenda: Appendix A - a working transcript (typed text) of the video recording of the crime reconstruction held
on 27.02.2015, which was conducted at 35 Ivan Kamyshev St. and involved the participation of Dvornikov V.M., the
suspect, on 6 pages. Appendix B - a working transcript (typed text) of the video recording of the crime reconstruction
held on 27.02.2015, which was conducted at the crime scene and involved the participation of Dvornikov V.M., the
suspect, on 8 pages.
Reference: The forensic examination opinion is returned with the materials that were provided for the
investigation: Panasonic MiniDV videotape (DVM60), 1 piece, in a paper envelope with the accompanying text on
one side describing the envelope contents, and also signatures of forensic experts and a square stamp imprint:
Examinations; Examined material No. 11". The envelope is sealed with three
prints of the same stamp.
[Seal: Ministry Justice of Ukraine; No. 02883133; Honorable Professor M.S. Bocarius Kharkiv Research Institute
Of Forensic Examinations]
- 443 -
- 444 -
Annex 35
Case No. 645/3612/15-k, Judgment of Conviction and Sentencing of 28 December
2019 of the Frunze Municipal Court of the City of Kharkiv
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
Annex 35
Case No. 645/3612/15-k, Judgment of Conviction and Sentencing of 28 December
2019 of the Frunze Municipal Court of the City of Kharkiv
This document has been translated from its original
language into English, an official language of the Court,
pursuant to Rules of the Court, Article 51.
- 445 -
- 446 -
— "Maidan" "Euromaidan" "Maidan" NUMBER "group."
"RF"), Ukraine's PERSON PERSON 11
[...]
found:
PERSON_5, during the events that took place in November 2013 – February 2014, was a
supporter of the “Anti-Maidan” social movement, and on February 18, 2014, being in Kyiv during
street clashes between supporters of the “Euromaidan” and “Anti-Maidan” social movements,
suffered bodily injuries, as a result of which he felt a persistent animosity toward supporters of the
Euromaidan movement, as well as national and local government officials who took office after
02/23/2014.
While receiving treatment at the Prof. O.I. Meshchaninov Kharkiv City Clinical Hospital of Urgent
and Emergency Medical Care during the period February 20-24, 2014, PERSON_5 made the
acquaintance of Kharkiv residents PERSON_4 and PERSON_6, who, as supporters of the Anti-
Maidan movement, had also suffered bodily injuries during the civil protests in Kyiv from
supporters of the Euromaidan movement and also harbored persistent animosity toward supporters
of the Euromaidan.
In the course of their communication, PERSON_5, PERSON_6, and PERSON_4 decided to stay
in touch using mobile phones specially allocated for this purpose, including phones with subscriber
numbers NUMBER_1, which was used by PERSON_5; NUMBER_2, which was used by
PERSON_6; and NUMBER_3, which was used by PERSON_4, i.e., to create a “closed
communication group.”
PERSON_5 held pro-Russian views and supported the idea of certain territories of Ukraine
becoming part of the Russian Federation (hereinafter “RF”), as well as the idea of a violent struggle
against Ukraine’s joining the European Union and NATO.
In or around November f2014 (the exact date and time were not determined during the
trial), PERSON_5 decided to make contact with representatives of the Russian special services
and to assist them in carrying out subversive activity against Ukraine. In November 2014, to further
his criminal plan, PERSON_5 departed for the RF, where he established contact with certain
individuals who were not identified in the course of the pretrial investigation, going by the names
of PERSON_8 and PERSON_9, who introduced themselves as officers of the Russian special
services.
In the course of their communication, these persons assigned PERSON_5 the task of monitoring
the movement of military hardware and then informing them about such movements, damaging
the property of PrivatBank Commercial Bank PJSC, and sending them information about the
sociopolitical sentiments of residents of Kharkiv and the Kharkiv Region. To fulfill his assigned
task, PERSON_5 made video recordings of the movement of military hardware and sent the
information he gathered to the aforementioned persons in exchange for monetary reward.
In February 2015 (the exact date and time were not determined during the trial), PERSON_5 once
again traveled to the city of Belgorod, RF, where he met with the aforementioned representatives
of the Russian special services. At this meeting, PERSON_8 and PERSON_9 proposed to
PERSON_5 that he carry out sabotage and terrorist activity in Kharkiv using, among other things,
a MON-100 anti-personnel mine. For this purpose they gave PERSON_5 documentation in
electronic form concerning the procedures for handling such a mine. At the same time, PERSON_5
was supposed to determine on his own the specific place and method of carrying out the terrorist
act.
- 447 -
After returning from Belgorod, RF, to INFORMATION_9, which he was using, Zatyshshya, Kharkiv District, Kharkiv Region.
NUMBER_4, "2014," public's "2014" Euromaidan social public's 22
The above circumstances, particularly the fact that a MON-100 mine constitutes an explosive device
designed to injure personnel, gave PERSON_5 a basis to realize that PERSON_8 and PERSON_9 were in
fact proposing that he cause an explosion that posed a danger to human life and health.
Kharkiv, one day in February 2015, but no later than 02/21/2015 (the
exact date and time were not determined during the trial), PERSON_5 received via email account
information from the aforementioned officers of the Russian
special services regarding the location of a cache with a MON-100 mine, located in a strip of woods near
the village of One day in February 2015 (the exact date and time were not determined during the trial, but not later than
02/21/2015), continuing to implement his criminal plan, with a view to using the explosive device to carry
out his terrorist activity, PERSON_5 drove in a greyish-blue Ford Sierra with license plate number
which was in constant use by him, and collected from the aforementioned cache a plastic bag
with a MON-100 mine and electric detonator, which he took home with him to the following address:
ADDRESS_3.
In order to achieve his goal of carrying out a terrorist act, in the course of monitoring social media on the
internet, specifically the social network Facebook, PERSON_5, learned about a peaceful assembly and
march to be organized and held by the Euromaidan Kharkiv social movement on the occasion of “Honoring
the Memory of Those Who Died in Kyiv in January-February 2014,” which was to be held on 02/22/2015
by the Palace of Sports located at 2 Marshal Zhukov Avenue, Kharkiv.
Thus, knowing full well that causing an explosion with an explosive device based on a MON-100 antipersonnel
directional fragmentation mine during the aforementioned peaceful assembly would produce
victims among activists of the Euromaidan Kharkiv social movement, against whom PERSON_5 harbored
persistent personal animosity due to their patriotic beliefs, with the goal of disturbing public safety,
terrorizing the population, and drawing the public’s attention to his own political views vis-à-vis his
disagreement with the political course of the current Ukrainian government, PERSON_5 selected the
aforementioned event “Honoring the Memory of Those Who Died in Kyiv in January-February 2014” as a
target for fulfilling the assignment he had received from PERSON_8 and PERSON_9 to carry out a terrorist
act. PERSON_5 informed PERSON_8 and PERSON_9 about the selected target and about his plan to use
the MON-100 mine during the aforementioned peaceful assembly, and the latter approved it. In exchange
for carrying out the attack, PERSON_5 was supposed to receive from the aforementioned representatives
of the Russian special services a cash reward in the amount of USD 10,000. PERSON_5 agreed to this
proposal.
Realizing how hard it would be to prepare and carry out the planned terrorist act on his own and that he
would need the help of third parties to facilitate the terrorist act, PERSON_5, on one day during the period
February 16-19 February, 2015 (the exact date and time were not determined during the trial), recruited his
acquaintances, PERSON_6 and PERSON_4, to prepare and carry it out, explaining to them in full detail
the essence of his plan and telling them about the monetary reward for their assistance in carrying out the
terrorist act. The latter, harboring a persistent animosity toward the pro-Ukrainian activists belonging to the
movement, fully realizing that PERSON_5 was actually proposing that they assist in
carrying out a terrorist act by providing the instruments and means of committing the crime, as well as
advice, eliminating obstacles, and in other ways, acting with a view to disrupting public security, terrorizing
the population, and drawing the public’s attention to their political views vis-à-vis their disagreement with
the political course of the current Ukrainian authorities, motivated by a persistent animosity toward pro-
Ukrainian activists, including representatives of the Euromaidan Kharkiv social movement, and acting out
of mercenary motives, voluntarily agreed to this, thereby entering into a conspiracy with each other.
PERSON_5, intending to detonate the MON-100 remotely, then searched the internet and studied diagrams
of the remote detonation of a mine, which consisted in using a modified mobile phone for this purpose,
which,
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upon "Initiator— unit" mine.
metro's "+" "-" modifying the Samsung mine.
metro's device's road's act. On the latter's ADDRESS 33
receiving an incoming call to the number of the SIM card installed on the mobile phone, gives a
positive command pulse from the lead-out electrical conductor to the output contact of the thyristor switch,
which opens the thyristor, closes the “Initiator – additional power supply unit” electrical circuit, and triggers
the electric detonator, thereby detonating the charge and launching the fragments of the MON-100 In order to carry out the planned terrorist act, at around 3:00 PM on 02/19/2015, PERSON_5 and
PERSON_6 purchased at a mobile phone and accessory shop located in the underpass of the Kharkiv
metro’s Proletarska station, a SIM card with subscriber number NUMBER_5 and a new Samsung E1200
headset, which they planned to use later to make a remote control system for an explosive device. Later, on
the evening of 02/21/2015, PERSON_5, at his home located at ADDRESS_3, using schematics he had
obtained from the internet and his previously acquired knowledge of the use of explosives, as well as a
toggle switch, 9-volt battery and thyristor he had purchased at the radio market in Kharkiv, disassembled
the Samsung E1200 telephone that he and PERSON_6 had obtained on 02/19/2015, took out the vibration
motor, and soldered two wires to the “+” and “-“ contacts on the board located beneath the vibration motor,
then made a hole in the side of the phone case, pulled the two wires soldered to the board through the holes,
and connected them to the thyristor, a power supply unit (9-volt battery) and the toggle switch, thus
E1200 mobile phone he had purchased and using it to manufacture a remote control
system for an explosive device to be used in combination with the electric detonator and MON-100 antipersonnel
directional fragmentation At around 1:00 PM on 02/21/2015, with a view to making an outgoing call to the modified phone
comprising part of the remote control system of the explosive device based on a MON-100 anti-personnel
directional fragmentation mine, and thus to activate the explosive device, PERSON_5 purchased at a mobile
phone and accessory shop located in the underpass of the Kharkiv metro’s Proletarska station, a Nokia 1110
mobile phone and a SIM card with subscriber number NUMBER_6, from which he planned to make a call
to the Samsung E1200 mobile headset with subscriber number NUMBER_5 installed in the explosive
device’s remote control system.
Continuing to take active steps to carry out the terrorist act planned for 02/22/2015, in order to scope out
the locations where the terrorist act was to be carried out and choose a place to plant the explosive device,
PERSON_5, on the afternoon of 02/21/2015 (the exact date and time were not determined during the trial),
driving the Ford Sierra with license plate number NUMBER_4, which was in constant use by him, drove
along Marshal Zhukov Avenue in Kharkiv, where he chose a snowdrift on the corner of the road’s right
shoulder, at the intersection with the exit from the Za Rulem [Behind the Wheel] Garage Cooperative
located opposite house No. 9/1 Marshal Zhukov Avenue, Kharkiv, as the spot in which to lay the explosive
device.
That same day, 02/21/2015 (the exact date and time were not determined during the trial), PERSON_5
discussed with PERSON_4 and PERSON_6 their criminal roles in preparing to commit the planned terrorist
night of February 21-22, 2015, PERSON_4 and PERSON_6 were supposed to contribute to the
commission of said crime by keeping watch near the place where the explosive device was to be laid by
PERSON_5 to ensure the safety of the latter’s actions, i.e., to ensure that there were no law-enforcement
officers or passers-by in the vicinity and, if any such persons were detected near the place where the mine
was to be laid by PERSON_5, to inform the latter of the danger of being exposed, thereby eliminating
obstacles to the commission of the terrorist act.
At around 2:00 AM on 02/22/2015, implementing their criminal intent, acting on their previously devised
plan for committing the terrorist act, PERSON_5, PERSON_4, and PERSON_6 met near the residence of
PERSON_5 at ADDRESS_3 and proceeded to the planned location of the terrorist act at ADDRESS_6.
PERSON_4 and PERSON_6 drove in a blue Opel Omega with state license plate NUMBER_7, which
belongs to PERSON_6, and kept watch according to the plan described above, while PERSON_5 drove in
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NUMBER with SIM card NUMBER_5, which device's
— mobile phone
— device's fragmentation mine, "Yield" Avenue, Kharkiv.
"Yield" device's NUMBER "Memory of Those Who Died in Kyiv in
2014," NUMBER 5'"2014."
PERSON 5'44
a greyish-blue Ford Sierra with state registration number NUMBER_4, which was in constant use by
PERSON_5, with the explosive device based on a MON-100 anti-personnel directional fragmentation mine
and the remote control system for said explosive device based on the Samsung E1200 mobile telephone
he himself had prepared in advance at his place of residence.
Between the hours of 02:00 and 02:30 AM on 02/22/2015, after arriving in the area where the terrorist act
was to be carried out, in the courtyard of ADDRESS_6, PERSON_5 prepared for use the explosive device’s
remote control system by enabling a component of the remote system – the Samsung E1200 with SIM card NUMBER_5 that had earlier been modified by PERSON_5 – and connected the electric
detonator to the explosive device’s remote control system. PERSON_5 then proceeded with said explosive
device to the right side of the intersection of the exit from the Behind the Wheel Garage Cooperative and
Marshal Zhukov Avenue, Kharkiv, where he screwed in the electric detonator connected to the remote
control system for detonating the MON-100 anti-personnel directional fragmentation mine. Between the
hours of 02:30 and 03:00 AM, using a sapper shovel he had on his person, PERSON_5 proceeded to lay
the fully assembled improvised explosive device based on a MON-100 anti-personnel directional
radio-controlled by telephone and ready for use, in the snowdrift he had previously
selected on the corner of the right shoulder of Marshal Zhukov Avenue, Kharkiv, at the intersection with
the exit from the Behind the Wheel Garage Cooperative, next to the “Yield” sign, with its warhead at a 30-
degree angle pointing at the roadway of Marshal Zhukov At the aforementioned time, on 02/22/2015, continuing to take active steps to facilitate the commission of
the planned terrorist act, with the aim of eliminating obstacles to committing the planned terrorist act,
PERSON_6 and PERSON_4, kept visual watch on Marshal Zhukov Avenue, Kharkiv, over the area
adjacent to the spot where PERSON_5 was laying the explosive device. PERSON_6 kept watch from his
vehicle near the Kyiv movie theater located at 1 Bulvar Yuryeva, Kharkiv, while PERSON_4 was at the
trolleybus stop opposite house No. 5 on Marshal Zhukov Avenue, Kharkiv. In the event that they detected
any law-enforcement officers or passers-by near the place where PERSON_5 was laying the explosive
device, PERSON_4 and PERSON_6 were supposed to inform PERSON_5 of the danger of being exposed,
thereby eliminating obstacles to the commission of the pre-planned terrorist act.
As a result of the aforementioned steps taken by PERSON_5, PERSON_6, and PERSON_4 between the
hours of 02:00 and 03:40 AM on 02/22/2015 according to the plan developed by PERSON_5, the radiocontrolled
improvised explosive device based on a MON-100 anti-personnel directional fragmentation
mine that had been laid in the snowdrift on the corner of the right shoulder of Marshal Zhukov Avenue,
Kharkiv, at the intersection with the exit from the Behind the Wheel Garage Cooperative, next to the
“Yield” sign, was set to explode after receiving an incoming call to the mobile phone of the explosive
device’s remote control system with SIM card NUMBER_8 from the Nokia 1110 mobile phone with SIM
card NUMBER_6, to be made by PERSON_5 during the procession of the column of participants in the
peaceful assembly and march on the occasion of “Honoring the January-February 2014,” planned for 02/22/2015.
At around 03:00 AM on 02/22/2015, after PERSON_5 laid the explosive device and they made sure that
their criminal actions has not been noticed by anyone and that the laid explosive device could not be
discovered in any other way, PERSON_5 and PERSON_4 departed in the greyish-blue Ford Sierra with
license plate number NUMBER_4, which was in constant use by PERSON_5, from the place where the
explosive device was laid, while PERSON_6, after making sure that the explosive device laid by
PERSON_5 was not visible, left after 03:41 AM on 02/22/2015 in the blue Opel Omega with state license
plate NUMBER_7 from the place where the explosive device had been laid, having agreed to meet up at
PERSON_5’s home address later the same day, 02/22/2015, before the start of the peaceful assembly on
the occasion of “Honoring the Memory of Those Who Died in Kyiv in January-February 2014.”
Continuing to pursue their criminal intent, aimed at carrying out a terrorist act, acting in collusion, at
approximately 11:00 AM (the exact time has not been determined) on 02/22/2015, PERSON_5,
PERSON_4 and PERSON_6 met at PERSON_5’s place of residence at ADDRESS_3.
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PERSONJ, — plate PM on
"I'm way" — "January-February 2014" — where he
rally
"I'm way" his Samsung E1200 mobile phone
6'number 6'"I'm way" NUMBER_5, which had been fragmentation mine.
6'6'latter's of "Honoring the Memory of 2014" person's 55
At that meeting, PERSON_5, PERSON_6 and PERSON_4 divided up their roles in committing the terrorist
act. According to their criminal conspiracy to commit the terrorist act, PERSON_6 was supposed to provide
the means of committing the crime, specifically a motor vehicle – the blue Opel Omega with state license
NUMBER_7 belonging to PERSON_6, in which PERSON_5, PERSON_6 and PERSON_4 were
supposed to depart from the aforementioned place of residence of PERSON_5 after 12:30 02/22/2015. As they headed in the direction of Marshal Zhukov Avenue in the Opel Omega with state
license plate NUMBER_7, PERSON_6 was supposed to drop PERSON_4 off by Imeni O.S. Maselskoho
metro station and proceed with PERSON_5 to house No. 9/1 on Marshal Zhukov Avenue, Kharkiv. To
avoid drawing the attention of the mass rally participants and law-enforcement officers, they were supposed
enter the courtyard of the aforementioned building from Mezhlauka St., Kharkiv. In the courtyard of said
building, PERSON_6 and PERSON_5 were supposed to wait for an SMS message with the words “I’m on
my way” from PERSON_4. At that time, in order to maintain secrecy, PERSON_4 was supposed to enter
Imeni O.S. Maselskoho metro station, travel to Marshala Zhukova metro station, and then proceed on foot
to the Kyiv movie theater located opposite the Palace of Sports – the location of the peaceful assembly on
the occasion of “Honoring the Memory of Those Who Died in Kyiv in 2014” – was to take up a position next to the Kyiv movie theater building, monitor the activity of the participants, and help PERSON_5 carry out the planned crime by providing instructions, specifically: when
the rally participants passed through the destruction zone of the pre-laid explosive device, PERSON_4 was
supposed to send a text message with the words “I’m on my way” from with subscriber number NUMBER_10 to PERSON_6’s Samsung E1200 mobile phone with subscriber
NUMBER_11, which was supposed to serve as an instruction for PERSON_5 to activate the
explosive device. At that time, according to the plan they had developed, PERSON_5, sitting in
PERSON_6’s vehicle, upon being instructed by PERSON_6 that the text message with the words “I’m on
my way” had been received from PERSON_4, was supposed to perform the role of the direct perpetrator
of the crime, activating the explosive device by making a telephone call from the Nokia 1110 with
subscriber number NUMBER_6 to the Samsung E1200 mobile phone with subscriber number
installed in the remote control system of the explosive device based on a
MON-100 anti-personnel directional Pursuant to their agreement, acting in accordance with the developed plan and the allocation of roles among
the group members, with the intent of carrying out a terrorist act, at around 12:40 PM on 02/22/2015,
PERSON_5, PERSON_6 and PERSON_4 departed in the blue Opel Omega with state license plate
NUMBER_7 belonging to PERSON_6 from the place of residence of PERSON_5, heading toward Marshal
Zhukov Avenue, Kharkiv, where the rally was being held. PERSON_6 stopped the car next to Imeni O.S.
Maselskoho metro station, where PERSON_4 got out of PERSON_6’s car, went into Imeni O.S.
Maselskoho metro station at 12:49 PM, and set out for Marshala Zhukova metro station. Upon arriving at
Marshala Zhukova metro station, at around 1:03 PM, PERSON_4 exited the metro and proceeded on foot
directly to the location of the rally, where he took up a position near the Kyiv movie theater located at 1
Bulvar Yuryeva, Kharkiv, with a view to visually monitoring the assembly participants and sending the
pre-arranged SMS message to PERSON_6’s phone. At that time, PERSON_5 and PERSON_6, traveling
in the latter’s car, entered the courtyard of house No. 9/1 on Marshal Zhukov Avenue, Kharkiv, and house
No. 3 on Bulvar Yuryeva, Kharkiv, stopping at a site from where they could see the roadway of Marshal
Zhukov Avenue, along which the peaceful march of participants in the peaceful assembly on the occasion
“Those Who Died in Kyiv in January-February 2014” was supposed to pass.
At 1:10:22 on 02/22/2015, PERSON_4, executing the arrangement he had made earlier with PERSON_5
and PERSON_6 with respect to the allocation of roles and each person’s involvement in carrying out the
terrorist
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"I'm way" "I'm way" NUMBERi 0 6'NUMBERi 1, giving NUMBER with the words "I'm on my way" from
4'person's
aforementioned prearranged
"I'm way" coconspirators'
words "I'm on my way" from conspirators' "2014" NUMBER committing the
NUMBER_5, fragmentation mine.
Nokia 1110
NUMBER modified Samsung E1200
"— unit" 66
act, being in the immediate vicinity of the assembly participants, seeing that the column of rally participants
had started to move along the roadway of Marshal Zhukov Avenue, Kharkiv, in the direction of Moskovsky
Avenue, Kharkiv, and was approaching the destruction zone of the explosive device, in order to execute
the plan of action he had developed with PERSON_5 and PERSON_6 for the commission of the terrorist
act, acting deliberately in collusion with PERSON_5 and PERSON_6, being fully aware that receiving the
pre-arranged SMS message from him with the words “I’m on my way” would constitute an instruction for
PERSON_5 to remotely detonate the explosive device based on a MON-100 anti-personnel directional
fragmentation mine, motivated by personal animosity toward the participants in said mass event, knowing
full well that his next actions would cause an explosion that would endanger the lives and health of those
participants and could possibly result in their deaths, sent the pre-arranged text message with the words
“I’m on my way” from his mobile phone with subscriber number NUMBER_10 to PERSON_6’s mobile
phone with subscriber number NUMBER_11, thereby taking all the necessary active steps to aid in the
commission of a terrorist act, i.e., he facilitated the commission of a terrorist act by his co-conspirators by
instructions and eliminating obstacles.
PERSON_6, for his part, at 01:10:22 PM on 02/22/2015, sitting in the blue Opel Omega with state license
plate NUMBER_7 in the courtyard of 9/1 Marshal Zhukov Avenue, Kharkiv, having received on his mobile
phone with subscriber number NUMBER_11 a text message “I’m way” PERSON_4’s mobile phone with subscriber number NUMBER_10, executing the arrangement he had
made earlier with PERSON_5 and PERSON_6 with respect to the allocation of roles and each person’s
involvement in carrying out the terrorist act, acting deliberately to implement the plan of action he had
developed with PERSON_5 and PERSON_4, knowing full well that receiving the SMS message with the words “I’m on my way” and passing it on to PERSON_5 constituted an
instruction for PERSON_5 to remotely activate the explosive device based on a MON-100 mine, motivated
by personal animosity toward participants in said mass event, knowing full well that his next actions would
cause an explosion that would endanger the lives and health of those participants and could possibly result
in their deaths, and would also cause panic, terrorize the population, and draw attention to the coconspirators’
pro-Russian views, informed PERSON_5 that he had received an SMS message with the
PERSON_4, thereby taking all the necessary active steps to aid in the
commission of a terrorist act, i.e., he facilitated the commission of a terrorist act by his co-conspirators by
giving instructions, eliminating obstacles, and providing means to commit the crime.
After receiving said message, PERSON_5, acting deliberately, as agreed in advance with PERSON_4 and
PERSON_6, to execute their jointly developed plan of action, acting out of mercenary motives, and also
motivated by personal animosity toward the participants in said mass event, knowing full well that his
immediate next actions would cause an explosion that would endanger the lives and health of those
participants and could possibly result in their deaths, and would also cause panic, terrorize the population,
and draw attention to the co-conspirators’ pro-Russian views, having made sure that the column of
participants marching in the peaceful assembly on the occasion of “Honoring the Memory of Those Who
Died in Kyiv in January-February 2014” was within the destruction zone of the explosive device based on
a MON-100 anti-personnel fragmentation mine, which he had installed, while sitting in the blue Opel
Omega with state license plate NUMBER_7 belonging to PERSON_6 in the courtyard of the building
located at ADDRESS_6, at 01:14:40 PM on 02/22/2015, made a telephone call from the Nokia 1110 with
subscriber number NUMBER_12 that was previously purchased specifically for use in planned terrorist act, to the specially modified Samsung E1200 mobile phone with subscriber number
which was a component of the remote control system for the explosive device based on a
MON-100 anti-personnel directional As a result of the outgoing call made by PERSON_5 at 01:14:40 PM on 02/22/2015 from the with subscriber number NUMBER_12 and, accordingly, the incoming call to the mobile phone with subscriber number NUMBER_5, a positive command pulse was given from the leadout
electrical conductor of said modified mobile phone to the output contact of the thyristor,
which opened the thyristor, closed the “initiator – additional power supply unit” electrical circuit, and
triggered the electric detonator, thereby detonating the charge and launching the fragments of the MON-
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"Yield" "Wheel" PERSON PERSON 1 1 PERSON PERSON - PERSON 1 6
— PERSON — — PERSON — -blunt — —
- — — — — — — — — NUMBER 77
100 mine that had been laid by the aforementioned group of persons in the snowdrift on the corner of the
right shoulder of Marshal Zhukov Avenue, Kharkiv, at the intersection with the exit from the Behind the
Wheel Garage Cooperative, next to the “Yield” sign, turned with its warhead at a 30-degree angle pointing
in the direction of the roadway of Marshal Zhukov Avenue, Kharkiv.
As a result of the aforementioned deliberate actions by PERSON_5, PERSON_6 and PERSON_4, aimed
at carrying out a terrorist act, at 01:14 PM on 02/22/2015, at the intersection of the exit from the “Behind
the Wheel” Garage Cooperative and Marshal Zhukov Avenue in Kharkiv, the explosive device based on
the MON-100 anti-personnel directional fragmentation mine, which was radio-controlled by telephone,
exploded, resulting in the death of PERSON_10 (Kharkiv Regional Bureau of Forensic Medical Expert
Assessment [KRBFMEA] Expert Report No. 582-Dm/15 dated 03/06/2015), PERSON_11 (KRBFMEA
Expert Report No. 583/DM/15 dated 03/06/2015), PERSON_12 (KRBFMEA Expert Report No. 65/At/15
dated 03/05/2015), and PERSON_13 (KRBFMEA Expert Report No. 66-At/15 dated 03/05/2015), as well
as injuries of varying degrees of severity to the following persons: PERSON_14 (KRBFMEA Expert Report
No. 564-aya/15 dated 03/16/2015) - blunt firearm shrapnel wound to the upper third of the left shoulder,
firearm shrapnel exit wound to the soft tissues of the left lumbar region, firearm shrapnel exit wound to the
upper third of the left thigh with an exit hole in the left sciatic region); PERSON_15 (KRBFMEA Expert
Report No. 664-aya/15 dated 03/18/2015) – blunt shrapnel wound to the suprapubic area; PERSON_16
(KRBFMEA Expert Report No. 159-A/15 dated 03/02/2015 – light bodily injuries); PERSON_17
(KRBFMEA Expert Report No. 160-A/15 dated 03/06/2015 – moderate injuries); PERSON_18
(KRBFMEA Expert Report No. 565-aya/15 dated 03/16/2015 – injuries to soft tissue); PERSON_19
(KRBFMEA Expert Report No. 562-aya/15 dated 03/17/2015 – moderate injuries); PERSON_20
(KRBFMEA Expert Report No. 567/Aya/15 dated 03/18/2015 – blunt shrapnel wounds to the anterior outer
surface of the lower third of the left thigh with partial crushing of the muscles); PERSON_21 (KRBFMEA
Expert Report No. 561-aya/15 dated 03/17/2015 – explosive trauma, shrapnel wounds to the lower
extremities and left hand); PERSON_22 (KRBFMEA Expert Report No. 563-aya/15 dated 03/18/2015 –
blunt firearm shrapnel wound to the soft tissues of the upper third of the left thigh); PERSON_23
(KRBFMEA Expert Report No. 566-Aya/15 dated 03/18/2015 – blunt shrapnel wound to the lower part of
the anterior surface of the right thigh with damage to the soft tissue); PERSON_24 (KRBFMEA Expert
Report No. 568-Aya/15 dated 03/18/2015 – light bodily injuries).
According to Expert Report No. 37/2015 of 03/22/2015 of the Scientific Research Center for Expert
Criminalistics of the Main Directorate of the Ministry of Internal Affairs of Ukraine for the Kharkiv Region
[SRCEC MD MIAU for the Kharkiv Region], at the scene of the incident on 02/22/2015, opposite the fivestory
building at 9/1 Marshal Zhukov Avenue there was an explosion of an improvised explosive device
radio-controlled by telephone and based on a MON-100 anti-personnel directional fragmentation mine. The
explosive device probably consisted of the following products and components: 1) a MON-100 antipersonnel
directional fragmentation mine (industrially-produced housing without a device for installation
and mounting); 2) an initiator (detonator) – industrially-produced electric detonator, probably an EDP,
EDP-R, ED-8, etc.; 3) remote explosion control system: radio signal reception and electric pulse control
unit - a mobile phone, probably a Samsung E1200 indigo blue with a SIM card, probably MTS or LIFE,
etc.; an additional electric power supply unit – a 9V power unit (battery), 6F22-type (salt), NASHA SILA
brand, model series X2 NASHA SILA 6F22 1 tray G3 * double power, and probably one or several 9V
6F22 or 6LR61 batteries of an undetermined model (alkaline); initiating pulse control and unauthorized
detonation prevention (electric key) – probably a low-power thyristor; 4) fastening elements for
components and assemblies of the explosive device: electrical connection elements – electric copper multiwire
conductors in black polymer insulation casing; fastening component material – black PVC electrical
insulation tape; electrical connection insulation (splice joints) – blue PVC electrical insulation tape; 5)
means of transportation and camouflage (probably) – white plastic bag.
The aforementioned explosion damaged a GAZ 3302-14 automobile with state license plate NUMBER_13.
According to Forensic Automotive Expert Report No. 2822 of the Prof. Em. M.S. Bokarius Kharkiv
Scientific Research Institute of Forensic Expert Assessment [KSRIFEA] dated 03/16/2015, the amount of
material losses caused to the owner of the Gaz 3302-14 automobile with state license plate NUMBER_13,
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is 29,039.92.
Region dated
- from the 5'5'NUMBER "Wheel" affiliation.
5'5'— — — — — of TNRS + lead TEN or RDX. The —
6'88
which was damaged on 02/22/2015 at the scene of the terrorist act, is UAH 12,984.76, and the cost of the
relevant repair UAH According to Expert Report No. 16 of the SRCEC MD MIAU for the Kharkiv 03/20/2015, wipe samples from the Samsung phone IMEI – NUMBER_14 with SIM card and battery and
inner surface of the Samsung phone IMEI-NUMBER_15 and battery revealed cells with nuclei
that match the genetic markers from PERSON_5’s saliva sample. The specified phones were used by
PERSON_5 to communicate and maintain contact with his co-conspirators in the commission of the
terrorist act.
According to Expert Report No. 5 of the SRCEC MD MIAU for the Kharkiv Region dated 03/16/2015, the
layer of soil removed from PERSON_5’s sapper shovel and from the mats of the Ford Sierra automobile
with state registration number NUMBER_4 and the soil samples taken to the right of the explosion site and
across the paved entrance to the “Behind the Wheel” Garage Cooperative have a common generic
In addition, under unknown circumstances and at a date and time that was not determined during the trial,
but no later than 02/26/2015, unlawfully, in violation of the requirements of the Instruction on the
Procedures for the Manufacture, Acquisition, Storage, Tracking, Transportation and Use of Firearms,
Pneumatic, Cold and Inert Weapons, Domestically Produced Devices for Shooting Cartridges Equipped
with Rubber or Similar Non-Lethal Projectiles and Cartridges Thereof, as well as Ammunition for
Weapons, Basic Parts, and Explosives, approved by Order No. 622 of the Ministry of Internal Affairs of
Ukraine dated 08/21/1998, PERSON_5 acquired two F-1 grenades with fuses, one electric detonator, and
an explosive (1,309 grams of plastic explosive), after which he stored them at his place of residence until
02/26/2015. These two F-1 grenades with fuses, one electric detonator, and 1,309 grams of explosives were
later found during a search of PERSON_5’s place of residence at ADDRESS_3 on 02/26/2015 and were
seized by officers of the Kharkiv Regional Directorate of the SBU.
According to Expert Reports of the SRCEC MD MIAU for the Kharkiv Region No. 49 dated 03/05/2015
and No. 81/2015 dated 03/19/2015, the following items were discovered and seized during a search of
PERSON_5’s place of residence on 02/26/2015: 1) two F-1 grenade bodies bearing no sign of interference
with their structure, which include a high-explosive substance – 50-56 grams of TNT, suitable for causing
an explosion; 2) two UZRGM-type (UZRGM-2) industrially-produced hand grenade fuses containing a
charge of a combined explosive – 0.1-02 grams of TNRS + lead azide and 1 gram of explosion-resistant
TEN or RDX. When the F-1 grenade bodies are combined with said UZRGM-2 fuses, they form industrial
explosive devices – F-1 hand fragmentation grenades, which constitute munitions. The object that looks
like a detonator is an electrical initiator – an EDP electric detonator, the casing of which contains a charge
of combined explosive – 0.1-0.2 grams azide and 1 gram of plastic
substance is an RDX-based explosive with a mass of 1,309 grams.
In addition, at a time that was not determined during the trial, but no later than 02/26/2015, in a place that
was not determined during the trial, unlawfully, in violation of the Instruction on the Procedures for the
Manufacture, Acquisition, Storage, Tracking, Transportation and Use of Firearms, Pneumatic, Cold and
Inert Weapons, Domestically Produced Devices for Shooting Cartridges Equipped with Rubber or Similar
Non-Lethal Projectiles and Cartridges Thereof, as well as Ammunition for Weapons, Basic Parts, and
Explosives, approved by Order No. 622 of the Ministry of Internal Affairs of Ukraine dated 08/21/1998,
PERSON_6, acquired two F-1 grenades with fuses, two electric detonators, and an explosive substance –
about 1 kg of plastic explosive.
During a search of PERSON_6’s place of residence (ADDRESS_5) on 02/26/2015, the aforementioned
two F-1 grenades with fuses, two electric detonators, and explosive substance (around 1 kg of plastic
explosive), which PERSON_6 had illegally acquired under unknown circumstances and stored at his place
of residence, were found and seized by officers of the Kharkiv Regional Directorate of the SBU.
^According to Expert Reports of the SRCEC MD MIAU for the Kharkiv Region No. 49 dated 03/05/2015
and No. 81/2015 dated 03/19/2015, the following items were discovered and seized during a search of
- 454 -
6'— an — TEN or — — — of TNRS + lead TEN or RDX. The Tracking, the Ministry of Internal of 4'of ammunition
4'4'4'— — TEN or — — — — 99
PERSON_6’s place of residence on 02/26/2015: 1) two F-1 grenade bodies bearing no sign of interference
with their structure, which include a high-explosive substance – 50-56 grams of TNT, suitable for causing
explosion; 2) two UZRGM-type (UZRGM-2) industrially-produced hand grenade fuses containing a
charge of a combined explosive – 0.1-02 grams of TNRS + lead azide and 1 gram of explosion-resistant
RDX. When the F-1 grenade bodies are combined with said UZRGM-2 fuses, they form industrial
explosive devices – F-1 hand fragmentation grenades, which constitute munitions. The object that looks
like a detonator is an electrical initiator – an EDP electric detonator, the casing of which contains a charge
of combined explosive – 0.1-0.2 grams azide and 1 gram of plastic
substance is an RDX-based explosive with a mass of 1,010 grams, and the two objects with wires similar
in appearance to initiation devices are the firing mechanism of the MVE-72 fuse.
In addition, PERSON_4, at an unknown time, but no later than 02/26/2015, in an unknown place,
unlawfully, in violation of the Instruction on the Procedures for the Manufacture, Acquisition, Storage,
Transportation and Use of Firearms, Pneumatic, Cold and Inert Weapons, Domestically Produced
Devices for Shooting Cartridges Equipped with Rubber or Similar Non-Lethal Projectiles and Cartridges
Thereof, as well as Ammunition for Weapons, Basic Parts, and Explosives, approved by Order No. 622 of
Affairs of Ukraine dated 08/21/1998, acquired two F-1 grenades with fuses, an
electric detonator, an explosive substance (1,060 grams of plastic explosive), gunpowder weighing a total
371 grams, and 46 units of ammunition for rifled weapons, after which he stored them at PERSON_4’s
place of residence until 02/26/2015. The aforementioned two F-1 grenades with fuses, one electric
detonator, and 1,060 grams of plastic explosives, 371 grams of gunpowder, and 46 units consisting of 5.45 mm cartridges for rifled weapons were later found and seized during a search of
PERSON_4’s place of residence (ADDRESS_2) on 02/26/2015 and were seized by officers of the Kharkiv
Regional Directorate of the SBU.
According to Expert Report of the SRCEC MD MIAU for the Kharkiv Region No. 111 dated 02/28/2015,
the following items were seized during a search of PERSON_4’s place of residence (ADDRESS_2) on
02/26/2015: forty-six 5.45x39AK 5.45 mm caliber intermediate combat cartridges designed for firing from
rifled weapons of the appropriate caliber and standard chamber size (submachine guns and Kalashnikov
machine guns), which constitute munitions.
According to Expert Reports of the SRCEC MD MIAU for the Kharkiv Region No. 49 dated 03/05/2015
and No. 81/2015 dated 03/19/2015, the following items were discovered and seized during a search of
PERSON_4’s place of residence on 02/26/2015: 1) two F-1 grenade bodies bearing no sign of interference
with their structure, which include a high-explosive substance – 50-56 grams of TNT, suitable for causing
an explosion; 2) two UZRGM-type (UZRGM-2) industrially-produced hand grenade fuses containing a
charge of a combined explosive – 0.1-02 grams of TNRS + lead azide and 1 gram of explosion-resistant
RDX. When the F-1 grenade bodies are combined with said UZRGM-2 fuses, they form industrial
explosive devices – F-1 hand fragmentation grenades, which constitute munitions. The object that looks
like a detonator is an electrical initiator – an EDP electric detonator, the casing of which contains a change
of combined explosive – 0.1-0.2 grams of TNRS + lead azide and 1 gram of TEN or RDX. The plastic
substance is an RDX-based explosive with a mass of 1,060 grams. The loose substance similar in
appearance to gunpowder is a propellant explosive – smokeless gunpowder with a mass of 201 grams and
170 grams.
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door. When he
prosecutor's absurd and illogical. This assertion, in the opinion of PERSON_6, is refuted by the printout of the detailed
hitting kicking him and hitting him with their rifle butts. At prosecutor's 1100
At the court hearing, the accused PERSON_4, PERSON_5 and PERSON_6 pleaded not guilty to the
charges.
PERSON_4 exercised his right not to testify under Article 63 of the Criminal Code of Ukraine.
The accused PERSON_5 explained at the hearing that he is a private businessman and has an impeccable
reputation in his line of business. He did not commit any acts aimed at undermining peace in the country.
His frequent travels to Russia, specifically to the city of Belgorod, were due exclusively to his desire to find
a well-paying job. At the time of the events of 2013 and 2014 in Ukraine, he did not participate in any mass
protests. On February 26, 2015, he was awakened by the screeching of metal of his front asked who was trying to break down the door, he heard that it was the SBU, and if he did not open the door,
then they would blow it up for him. He opened it, and they immediately put him face down on the floor and
started conducting a search. After these actions, he was tortured for a long time and was forced to sign all
the procedural documents as demanded by the operational officers and the prosecutor in accordance with
the instructions provided. As a result of the torture, he indicated and recounted his involvement in causing
the explosion according to the scenario indicated to him. PERSON_5 states that no evidence in the case
can be recognized by the court as proper and admissible as it was obtained in flagrant violation of the law
and the Constitution of Ukraine. He noted that he was not involved in committing the terrorist act that
occurred on 02/22/2015 in the city of Kharkiv.
The accused PERSON_6 claimed during the hearing that the evidence in these criminal
proceedings was falsified. He argues that the prosecutor ignored the commission of a crime against him by
SBU officers as a result of what he considers to be unlawful actions. Pre-trial investigators used unlawful
methods against him and thus obtained his signature on each procedural document, but he did not sign any
of them in his own hand. PERSON_6 believes that the indictment does not contain any evidence of his
involvement in the commission of the specified criminal offenses. All of the prosecutor’s arguments are
unfounded and unsubstantiated, based on personal speculation, and are not supported by any evidence in
the case. The references in the indictment to meetings with PERSON_4 and PERSON_5 by Hospital No.
25, where it was agreed that each of them would receive USD 1,000 for carrying out the terrorist act, are
                 
description of the telephone calls from the telephones used by PERSON_4 and PERSON_5, which was
examined at the hearing. As for the laying of the explosives, PERSON_6 says that PERSON_5 could not
have done this as he lacks the necessary skills, and that the assertion that PERSON_6 directed his actions
is completely absurd. As for the expert soil, DNA and firearms reports that were obtained, PERSON_6
believes that these reports do not support but actually refute the charges and should be dismissed as
improper evidence. The accused states that on February 26, 2015, he was detained at his place of residence
by armed persons without any explanation and that he was told with threats that he needed to go with them,
during which time, about one kilometer from the Kharkivsky and Volchansky district, the car made a right
turn onto off-road terrain, he was pulled out of the car and forced to kneel in the snow, and they started
the same time, they constantly threatened him
and said that he was only alive because his daughter had been present when he was taken into custody. He
reported all of these events and submitted the relevant notes, statements, testimony, and forensic medical
reports, but a decision was issued to terminate the criminal proceedings over his alleged torture. In the
opinion of the accused, the prosecutor’s assertions that he, PERSON_4, and PERSON_5 were involved in
the commission of the crime are trumped-up and fabricated, and the evidence submitted in the case is
improper and inadmissible. The accused PERSON_6 asks the court to dismiss as inadmissible evidence
Expert Reports of the SRCEC No. 49 dated 03/05/2015 and No. 81/2015 dated 03/19/2015 concerning the
two grenade bodies, two detonators, one electric detonator, two detonator mechanisms, and plastic
explosives seized at his place of residence, as they were obtained during an illegal search. Regarding the
testimony of the Chernykiv brothers and the identification report, the accused believes this evidence was
flagrantly falsified and cannot be included in the indictment. In light of the testimony of expert PERSON_25
at the hearing, the accused asks the court to take into account that installing explosives requires special
skills that the accused do not have. He noted that he was not involved in committing the terrorist act that
took place in Kharkiv on 02/22/2015.
- 456 -
1111
- 457 -
public order at the March of Dignity. This event started near the Palace of Sports. They arrived at the event two
PERSON ofpolice waist "tibia," l 0, PERSON Kharldv-1122
Although the accused PERSON_4, PERSON_5 and PERSON_6 have not admitted their guilt, their
guilt is supported by the following evidence, which was examined by the court:
- the testimony of victim PERSON_18, who explained that on February 22, 2015, his unit was protecting
                    
hours before it started. Before the event, they walked around and inspected the surrounding area where there
were crowds of people, inspected any large bags, inspected people in large coats who may have been carrying
concealed firearms or other objects that might have endangered Ukrainian citizens. The route of the march was
partially known to them. When the march began, their unit formed a single line and stood at the head of the
column to ensure public safety and prevent collisions. After they walked 200-300 meters, leaving behind the
Kyiv movie theater and the Palace of Sports, and as they approached the garage cooperative, which was on their
left, there was an explosion. People panicked and stared running. At the time of the explosion, the victim
managed to turn his back to the epicenter of the explosion and saw people falling and heard screaming. The
victim was in shock but pulled himself together and started giving first aid to the injured people and pulling
people aside for fear of another explosion. After running about 100 meters to the building opposite the epicenter
of the explosion in search of shelter, the victim collapsed, as his strength had left him and he felt as if something
had happened to his back. The victim then started receiving first aid and was taken to the hospital, where he
underwent surgery. The victim has a total of three operations. That same day, the victim also saw his colleague,
PERSON_26 and PERSON 3;
the testimony of PERSON_19, who explained that on February 22, 2015, due to the nature of his job, he was
monitoring the passage of a column of police officers who were protecting public order near the Palace of Sports.
The victim was in front of the column and, according to his job duties, was supposed to monitor the police
officers walking behind him to encircle the column and ensure public order. The column was moving toward
Moskovsky Avenue along Marshal Zhukov Avenue. After they crossed the intersection with the Kyiv movie
theater, there was an explosion, as a result of which the victim was turned to the right toward the movie theater,
jumped up a little, and saw that he was bleeding below the waist. The victim sat down and took out his mobile
phone to call his superiors at once. At that moment, people in camouflage clothing ran up to him, dragged him
aside, and put a tourniquet on him, after which they called an ambulance, which came and took him to the
hospital. The victim was treated at Hospital 25, where he was diagnosed with “explosive shrapnel wound to the
leg with damage to the tibia,” which, in terms of severity, constitutes moderate bodily injuries. On that day, the
victim was also accompanied by his colleagues, PERSON_18 and PERSON_10, who perished.
- the testimony of PERSON_15, who explained that on February 22, 2015, there was a rally by the Palace of
Sports, and he and his friends heard about it and decided to attend. The victim went to the Kyiv movie theater,
where he met up with his acquaintances, PERSON_28 and PERSON_29, and several other guys. They stood
there talking for a bit, and then the column set out from the Kyiv movie theater, heading toward Marshala
Zhukova metro station. The victim was walking in the first row of the column. After they walked about 150
meters, there was an explosion to the left column. As a result of the explosion, the victim received a shrapnel
wound to the abdomen and spent almost a month in the hospital. After the explosion, there was chaos in the
crowd. People were running in different directions, shouting. After the explosion the victim went into the
courtyard of a building and sat on the first bench, where victim PERSON_16 washed his wound with water, after
which he waited for help. After a short time, some cars arrived, and they put the victim into one of them and
drove him to the hospital. As a result of the explosion, PERSON_12 and PERSON_30 were also wounded;
- the testimony of PERSON_21, who explained during the hearing that on February 22, 2015, he was serving as
a policeman in the Kharkiv-1 voluntary police patrol service, and they were assigned to protect public order near
the Palace of Sports, where a rally was being held, followed by a march, which they escorted as police officers
to protect public order. At about 01:00 PM, the column set out from the Palace of Sports, heading toward the
Marshala Zhukova metro station. About 5-10 minutes later, on the left side of the route, shortly before they
reached the garage cooperative, there was an explosion. The victim was walking in front of the column on the
left side. After the explosion, the victim heard
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"heroes!" fell down in front of her. After running
wearing;
1133
screaming and saw that people were running in every direction. As a result of the explosion, the victim
received penetrating wounds to his knee and left thigh, for which the victim received medical treatment.
The victim stated that the column consisted of civilians, including women and children, and that during
these events his colleagues PERSON_23, PERSON_18 and PERSON_14 were also wounded. The victim
gave himself first aid and saw that his colleague PERSON_18 was given first aid. First aid was given by
both police officers and civilians. The victim knows PERSON_26, as they served in the same battalion. On
that day, the victim saw PERSON_26 before the explosion, but he does not remember if he was there after
the explosion or gave anyone first aid. The victim saw a Gazel vehicle standing in the roadway. The column
was also escorted by a patrol car. The victim does not remember whether or not he saw a blue Opel Omega
that day;
- the testimony of PERSON_24, who explained at the hearing that on February 22, 2015 he participated in
a march, the name of which he does not remember. The victim was walking on the right side of the column
along Marshal Zhukov Avenue toward an intersection. After they crossed the intersection, to the left of the
column, about two minutes later, after the words “Glory to Ukraine! Glory to the heroes!” there was an
explosion. The victim blacked out, but then, when he came to, he heard screaming and saw that everyone
was running. He and some other people were being given first aid. As a result of the explosion, the victim
received a shrapnel wound to his ankle. The victim does not know who carried out the terrorist act. When
the victim was walking in the column he did not see an Opel Omega or any other suspicious vehicles. All
he saw was a parked Gazel;
- the testimony of victim PERSON_32, who explained at the hearing that on February 22, 2015, at around
12:00 PM, he was driving in a Gazel automobile from Prospekt Heroiiv Stalinhradu along Marshal Zhukov
Avenue in the direction of Moskovsky Avenue. By the Palace of Sports, the victim saw a large group of
protesters. The police showed him where he could pass, after which the victim started moving from the
right lane to the left oncoming lane in order to go around the people. The car traveling at a speed of around
20 km/h. But as he was driving in the oncoming lane, an explosion occurred to his left. His car windows
were damaged. The victim got out of the car, then saw that it was rolling, so he went back and stopped it.
After the explosion, the victim saw protesters running in every direction. He then saw a dead man near his
car. The victim ran toward a courtyard, where people were sitting on benches. Within five minutes,
ambulances arrived on the scene and gave people first aid. The victim did not notice whether any cars were
leaving the courtyard. The victim explained that he had paid for his vehicle and received a technical
certificate for it, which meant that he was its owner, but this was never documented. During the explosion,
the vehicle was damaged on the left side and in front, specifically: there was damage to the canopy, which
was covered in small holes; the radiator was also damaged, as it was punctured, resulting in a major leak;
the windows were damaged; there were holes in the hood; and the right and left mirrors were shattered;
- the testimony of victim PERSON_33, who explained at the hearing that on February 22, 2015, she met
with her acquaintance, PERSON_13, after which they met up with a group of his friends and headed over
to the Palace of Sports. They then began to form a column, in which they stood on the left-hand side toward
the front, with PERSON_13 standing next to her, PERSON_12 in front of her, and PERSON_15 next to
him. The column walked for about 20 meters, and there was an explosion. When the victim regained
consciousness, she saw that she was bleeding and started to run toward a five-story building. PERSON_15,
who was wounded in the abdomen, ran next to her. PERSON_12 into the courtyard, she lay down on a bench, and someone tried to bind her wound. PERSON_15 also sat
opposite her on a bench. The witness does not recall what kind of assistance was provided to him. The
witness cannot say how long she was on the bench, as she had lost a lot of blood and was drifting in and
out of consciousness. A paramedic then came into the courtyard with a stretcher, which they lifted her onto
and took her to the ambulance. As a result of the explosion, the victim received a shrapnel wound to the
lower left thigh, for which she received medical treatment. The victim does not remember what her friends
were - 459 -
"Dignity", brother's "injuries." PERSON "Dignity". "Dignity", victim's 1144
- the testimony of victim PERSON_20, who explained at the hearing that on February 22, 2015, there was a
celebration to mark the anniversary of the “Revolution of Dignity”, and she was there as part of the Right Sector.
They started out close to the stage. Then the march began, during which she was on the left side of the column,
a bit toward the rear. A few minutes after they departed from the Palace of Sports, there was an explosion. After
the explosion, everyone ran to the right side of the road. The victim did not run anywhere at first, as she was
afraid that there might be another explosion. After the victim saw that everything was all right on the right side
of the road, where people were running to, she also started to move in that direction. Running across the road,
the victim saw PERSON_36 fall into a puddle. She stopped and saw that people were already running up to him.
Then she saw that he was wounded and bleeding, and she also went up to everyone where PERSON_36 was
located. People from Right Sector also approached him and started giving him first aid. Then an ambulance
worker approached and offered to help her, but she refused. Then a lot of ambulances arrived, and they found
that a lot of people were wounded. Two were killed on the spot, and two boys were rushed to the hospital. She
went to the metro station, receiving assistance on the way, as she was in pain and discomfort, and together they
went to the office. Upon arriving there, she took a turn for the worse, and they called an ambulance for her,
which took her to the hospital. The victim was wearing a bulletproof vest that day. She does not remember if
anyone else was wearing one;
- testimony of PERSON_2, who explained at the hearing that she is the sister of PERSON_10, who died in the
incident on February 22, 2015. At that time, he was working as deputy heard of the Pervomaisky District Police
Department, and was on duty that day, escorting the column of peaceful protesters. The victim also explained
that her brother, PERSON_10, often came to the city of Kharkiv to escort various demonstrations and protect
public order. Her brother’s death was caused by fatal injuries sustained in the explosion, which were recorded
in the forensic medical report, specifically: “explosive injuries, brain damage, and other bodily injuries.” The
victim also indicated that she was not an eyewitness to the terrorist attack and that she arrived at the crime scene
afterwards;
- the testimony of victim PERSON_3, who explained that on February 22, 2015, as the column moving from the
Palace of Sports toward Moskovsky Avenue, a mine explosion occurred, wounding his son, PERSON_12, who
died a day later, as the wound had been fatal. His son was there because he loved his country. The victim did not
know that his son was going there. He only knew that PERSON_12 was going to meet up with his friend,
PERSON_15. As a result of the explosion, his son received an exit wound to the head;
- the testimony of victim PERSON_14, who explained at the hearing that on February 22, 2015, he was working
as a field officer for the Criminal Investigation Division of the Pervomaisky District. At around 11:00 AM, they
arrived at the Palace of Sports intending to maintain public order during the rally and march dedicated to the
anniversary of the “Revolution of Dignity”. First there was a rally near the Palace of Sports, and then the
assembled crowd started moving from the Palace of Sports toward the Marshala Zhukova metro station. The
victim was walking on the left-hand side of the column, toward the front. Victim PERSON_10 was walking
about 10-15 meters away from him, and somewhere around 01:00 PM there was an explosion, as a result of
which he lost consciousness for a few seconds. After he came to, he saw the deceased PERSON_10, who had a
hole in his head. The victim himself felt a pain in his leg and went to the bus, where his colleagues gave him
first aid and discovered that he had an exit wound to the leg, an exit wound to the abdomen, and a wound on the
left arm, which, as it later turned out, was broken. The victim was then taken to the hospital. The victim also
pointed out that there were no aggressive persons at the march. Everyone was patriotic with patriotic symbols;
- the testimony of victim PERSON_16, who explained at the hearing that on February 22, 2015, he met with his
friends PERSON_15 and PERSON_12 near the Kyiv movie theater and went with them to the march to
commemorate the “Revolution of Dignity”, which was being held near the Palace of Sports. The victim had
learned of the march about a day beforehand from his friends. After the rally, the column set out from the Palace
of Sports in the direction of Moskovsky Avenue. The victim was walking somewhere in the third row of the first
column, on the left-hand side. At around 01:00 PM, there was an explosion to the victim’s left. As a result of the
explosion, the victim received injuries to the soft tissues of the leg, for which he was taken to the hospital;
- 460 -
l 1, 1155
- the testimony of victim PERSON_17, who explained at the hearing that on February 22, 2015, at around 11:00
AM, he met with his friends PERSON_28 and PERSON_ 13 by the Kyiv movie theater, and they went to the
rally that was being held by the Palace of Sports. After the rally, at around 12:00 PM, a march started. The
victim, together with PERSON_12 and PERSON_13, got in the first row of the column, on the left-hand side.
They were walking in the direction of Marshala Zhukova metro station. After walking up ahead a bit and coming
to the intersection, they stopped to wait for the column that was coming up from behind, and at that moment
there was an explosion, as a result of which he lost sight of his friends. The victim did not immediately
understand that an explosion had occurred. At first he thought that it was a firecracker. Then the victim went out
onto the sidewalk, where an unknown woman came up to him and examined his hand, as his finger was beginning
to go numb, though he did not know why, and proceeded to apply a tourniquet. After that, the victim waited for
an ambulance, in which he also saw his friends PERSON_39, PERSON_40, and PERSON_41, with whom he
traveled to the hospital. As a result of the explosion, the victim received shrapnel wound to the left arm, shoulder
and pelvis;
- the testimony of victim PERSON_23, who explained at the hearing that on February 22, 2015 he was serving
in the Kharkiv-1 Special Police Battalion. They received an order that day to protect public order at an event that
was supposed to take place by the Palace of Sports. It was a rally of right-wing democratic forces. The victim
and his colleagues arrived at the scene of the tragedy at around 11:00 AM. The rally started at around 12:00 PM,
after which the organizers decided to march from the Palace of Sports toward Moskovsky Avenue and beyond.
After they walked about 100-200 meters from the Palace of Sports, at around 01:00 PM, an improvised explosive
device exploded in front of the column about 20 meters from the victim. He did not see the blast his own eyes
due to a Gazel vehicle that obstructed his view. The victim learned about the characteristic features of the blast
later, while at work. As a result of the explosion, the victim received a shrapnel wound to part of his thigh. Also,
as a result of the explosion, his colleague died, as well as PERSON_11, whom he had known before the tragedy.
In addition, the victim stated that after he was wounded he remained on duty for more than an hour, after which
he was taken away in an ambulance. The victim noted that there were no calls to commit violence against anyone,
and there were no Nazi symbols, only patriotic symbols of Ukraine. Before the ambulance arrived, first aid was
provided by medics from his battalion and other police officers;
- the testimony of victim PERSON_42, who explained at the hearing that he worked at a kiosk located in the
underpass at Proletarska metro station, where he saw PERSON_5, who had purchased from him a Samsung
E1200 mobile phone, an MTS operator starter pack, and a top-up to the phone account some four days prior to
the terrorist act. The witness was summoned to the SBU, where he was questioned and was then asked to identify
the suspect. The witness recognized PERSON_5. The witness also recognized PERSON_6 during the
identification process, as he had seen him at the kiosk that day when PERSON_5 was buying a phone from him.
The witness could not tell investigators the IMEI number of the purchased mobile phone or the phone number
of the purchased starter package, as a lot of time had passed since then, but all of this information was recorded
in his notebook and was provided to the investigation. The witness was questioned by the SBU 4-5 days after
the phone was purchased from him. His brother was also questioned by the SBU that day. The witness stated
that he was not summoned to the SBU for questioning, that he left home for work in the morning, and some SBU
officers approached him, introduced themselves, and asked him to go for a drive with them to shed light on the
facts. Before being asked to identify the suspects, the witness was questioned. This was in the morning. After
that, he was asked to identify the suspects. The witness was given four photographs, among which he identified
PERSON_5. After that, he was asked a second time to identify any suspects. Once again, he was shown four
photographs, among which he identified PERSON_6. The witness noted that he recognized PERSON_5 and
PERSON_6 by their general facial features, and he does not recall what they were wearing. When PERSON_5
bought the phone from him, the witness was working by himself. He does not know where his brother was. The
documents for the purchased phone were seized from his brother. The witness does not recall if he is issued a
receipt for the purchased phone. The witness signed an identification report, which was also signed by two
witnesses who were present during the identification process. The witness did not tell his brother which questions
he had been asked under questioning. The witness noted that a lot of time had passed since that moment, so he
does not remember all the details;
- 461 -
MEI prosecutor's 1166
- the testimony of victim PERSON_43, who explained at the hearing that as of February 22, 2015 he was working
as a salesman at a kiosk in the underpass at Proletarska metro station, where he sold mobile phones, accessories,
and starter packs, and helped people top up their accounts. He made around 60-70 sales a day, most of which
were mobile phone top-ups, as well as 2-3 sales of mobile phones and 2-3 sales of starter packs. On the afternoon
of February 21, 2015, PERSON_5 purchased from him the cheapest used Nokia mobile phone, which cost
around UAH 200, plus a starter pack. A purchase certificate was drawn up for the sale. The witness does not
remember whether it was seized by the investigator. No warranty was provided when purchasing a used phone.
No receipt was issued either, since no one asked for one. About a week after the phone was purchased, the
witness was summoned to the SBU one afternoon for suspect identification, where he was given three or four
photographs with images of different men, among whom the witness recognized and identified PERSON_5 by
his general features and light hair color. The witness cannot say the IMEI number of the purchased mobile phone
or the mobile phone number of the purchased starter pack, as a lot of time has passed, but all of this information
is written down in his notebook and was provided to the investigation. When PERSON_5 purchased the phone,
the witness was working alone. He does not know where his brother was. During the identification process, the
witness and his brother were kept in separate offices. The witness was not asked prior to the identification process
by what features he would identify the person. The witness was advised of his rights during the identification
process. After the identification process, the witness signed the identification report. He does not remember who
else signed it. The witness also pointed out that he was first questioned, and only then did they proceed to the
identification process. The witness noted that a lot of time has already passed since that moment, so he does not
remember all the details;
- the testimony of victim PERSON_26, who explained that on February 22, 2015, a protest for the impeachment
of former president PERSON_45 was announced on Marshal Zhukov Avenue in Kharkiv, outside the Palace of
Sports, and the witness went there to take photographs with a view to posting them on the internet. The witness
arrived at the Palace of Sports, where the protest was taking place, after which a march was planned, which
would retrace the route taken one year before to Freedom Square. The witness was walking ahead of the
procession, about three meters away from the police officers who were escorting the people, and when the march
reached the intersection where there was a turn to the garage cooperative, there was a popping sound to the right
of the witness, after which the witness was thrown sideways, and he immediately realized that there had been an
explosion. After regaining his orientation, the witness saw two police officers injured on the grass beside the
road. The witness ran up to one of the police officers and saw that his leg had been punctured. The witness had
a tourniquet in his backpack, which he took out and gave to the office, since it was the kind you could apply
yourself. The witness stated that he always used to carry emergency supplies in his backpack. The witness then
saw that people had moved toward a courtyard on Marshal Zhukov Avenue. Realizing that the police officers
could give themselves first aid, the witness went to inquire after the wellbeing of the people who had moved
deeper into the courtyard, passing by the kiosk that is situated between two buildings and stands parallel to
Marshal Zhukov Avenue. After going around the kiosk, the witness encountered a blue Opel Omega, in which
two people were sitting, and which he had to go around in order to reach the people who were sitting on benches
at the end of the courtyard so that he could assist them or redirect them to the ambulances, which had not yet
arrived at that time. The witness concluded that the individuals in the car were men, since their silhouettes were
large and they had short haircuts. As he approached the people, the witness saw that they were merely frightened,
not injured, and did not need any help. He headed back to the site of the explosion to find out if anyone else
needed help. When the witness turned to go back to the site of the explosion, the blue Opel Omega was no longer
there. The witness also noted that about a minute and a half had passed from the moment he had approached the
people in the courtyard and realized that they were not injured until he headed back to the site of the explosion.
He was summoned to the SBU to identify the car, where he was shown photos of various cars (he does not
remember how many), which were similar in appearance. The witness recognized the car by its characteristic
wheels, which were unusual, with something resembling small cobwebs, tinted windows, and the color of the
car. The witness noted that the SBU officers and prosecutor’s office employees did not exert any physical or
psychological pressure on him. The witness gave more detailed statements under examination in court because
he was asked more questions than during the pre-trial investigation. When the witness entered the courtyard of
the building, there were 3-4 other parked cars there. The witness remembered the blue Opel Omega because it
left almost immediately, which was suspicious. The witness took several photos before the explosion
- 462 -
5'5'latter's 5'PERSON 1177
but could not take any after the explosion because the lens was damaged by the blast wave. The witness handed
over the photos he took to an SBU officer. The witness had learned about the march from the internet. He was
not aware of the existence of any terrorist threats during the march. The witness also noted that he did not say
he had seen the blue Opel Omega, since his first interview was conducted on the day of the explosion, in the
evening, after he had already heard about the number of people killed or wounded, and he was tired and not in
a very good emotional state, and could not remember what had happened that day, did not really want to give a
statement, as he wanted to go home. The next day, however, when the witness realized what had happened, he
remembered all the details, which he reported to the investigator;
- the testimony of victim PERSON_1, who reported at the hearing that she had lost her husband in the terrorist
act committed in Kharkiv on 02/22/2015;
- the testimony of PERSON_25, who explained at the hearing that as of February-March 2015 he was working
at the Scientific Research Center for Expert Criminalistics of the Ministry of Internal Affairs of Ukraine. As part
of these criminal proceedings, he performed an expert review, the findings of which he fully supports. Under
interrogation, PERSON_5 drew a diagram of the explosive device, claimed that he was the one who made it,
that he knew its schematics, and that he committed this crime. The following persons were present during
PERSON_5’s interrogation: the investigator, PERSON_5 himself, his defense attorney, and the expert. No one
else was present at the interrogation. During the interrogation, PERSON_5 claimed that he was the one who did
it. PERSON_5 provided explanations confidently, without hesitation. He drew the diagram himself. At the time
of PERSON_5’s interrogation, the expert already had the results of an inspection of the incident scene and
understood that it was a MON-100 mine that had exploded. The diagram drawn by PERSON_5 completed
supported this, with the exception of a drawn switch that was not found at the scene of the incident inspection.
The files of expert assessment contain a comparative table. Pages 69 and 70 show fragments, the most
identifiable features of which are MON-100 mine fragments, specifically cylindrical fragments with a diameter
of 10x10 mm, as well as their mass, which is characteristic only for the MON-100 mine and which were affected
by the close contact impact of the explosive. Moreover, cylindrical fragments similar in appearance and
composition were also removed from the bodies of the victims. The expert also noted that apart from said
cylindrical fragments measuring 10x10 mm, no fragments of a different shape, size or origin were removed from
either the bodies of the victims or the crime scene. A MON-100 mine consists of a casing, to the compound of
which these fragments are attached, and an explosive is placed behind them. As a result of all this, it is possible
to conclude that the remains of a MON-100 mine, which exploded in normal fashion, were found at the site of
the scene inspection. The diagram drawn by PERSON_5 is typical for a MON-100 mine, as it shows the
characteristic contact thyristor, which is essentially a key that prevents detonation in the event of accidental
electrical action and allows one to supply additional power to an electric-type initiator (electric detonator) when
a corresponding signal is received from a mobile phone, walkie-talkie, alarm block, etc. Also, the drawn diagram
is characterized by the presence of mobile phone, or rather fragments thereof, which were found at the scene,
along with the remains of a single-wire copper wire, which remained from the explosion of the electric detonator.
The expert explained that he had not seen any injuries on PERSON_5 during the latter’s interrogation. The expert
also noted that there is no crater at the explosion site, since the mine was placed on a layer of snow, rather than
on the ground, and it is also a directional mine, the action of which was focused in a forward direction. Moreover,
the expert noted that there is no unique number for a specific MON-100 mine. The expert pointed out that the
expert report lays out absolutely everything that can be laid out on the basis of the items that were provided to
them for examination. The expert also noted that PERSON_5’s claim that the expert himself drew the diagram
of the explosive device for the investigator is untrue, since PERSON_5 gave his testimony voluntarily, and no
pressure was exerted on him.
In addition to the testimony of the victims and the witnesses, the guilt of the accused is also supported
by the following written evidence, which was examined by the court:
- the report of the Main Department for the Defense of National Statehood of the Kharkiv Regional Directorate
of the Security Service of Ukraine [MD DNS of the Kharkiv Regional Directorate of the SBU] dated 02/26/2015
regarding the commission of a criminal act bearing elements of a criminal offense under Article 263(1) and
258(3) of the Criminal Code of Ukraine, in relation to PERSON_5 (case file v. 1, p. 8);
- the report of the MD DNS of the Kharkiv Regional Directorate of the SBU dated 02/26/2015 regarding the
commission of a criminal act bearing elements of a criminal offense under Article 263(1) and 258(3) of the
Criminal Code of Ukraine, in relation to PERSON_6 (case file v. 1, p. 15);
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— — NUMBER persons' persons' l 0 l 1 l 1 1188
- the report of the MD DNS of the Kharkiv Regional Directorate of the SBU dated 02/26/2015 regarding the
commission of a criminal act bearing elements of a criminal offense under Article 263(1) and 258(3) of the
Criminal Code of Ukraine, in relation to PERSON_4 (case file v. 1, p. 22);
- the report on the inspection of the incident scene – the site of the explosion on Marshal Zhukov Avenue in
Kharkiv – dated 02/22/2015 with a diagram, photo table, and transfer certificate (case file v. 4, pp. 31-97);
- the report on checking objects found and seized at the explosion site and adjacent territory on Marshal Zhukov
Avenue in Kharkiv for the presence of explosive devices, explosives, or structurally similar items dated
02/22/2015 (case file v. 1, p. 98);
- order dated 03/13/2015 to admit the Gazel automobile with license plate number NUMBER_13, which was
damaged in the explosion of the explosive device on Marshal Zhukov Avenue in Kharkiv on 02/22/2015, as
physical evidence in the criminal proceedings (case file v. 1, p. 105);
- response to the instruction to the MD DNS of the Kharkiv Regional Directorate of the SBU, verifying the
phone numbers of the accused PERSON_5, PERSON_6 and PERSON_4, which they used in committing the
terrorist act on Marshal Zhukov Avenue in Kharkiv on 02/22/2015 and on the eve of said terrorist act, and
verifying by investigative means said persons’ involvement in the terrorist act and the vehicles they used to
prepare and commit the act, including the circumstances that contributed to the formation of said persons’ intent
to commit this terrorist act and their persistent animosity to the current authorities, which was recorded on a
storage medium in the form of a PT disk and printed photographs from the internet (case file v. 1, pp. 177-180,
182-187, 187, 188-192);
- report dated 02/22/2015 on an inspection of the incident scene, during which the explosion site on Marshal
Zhukov Avenue in Kharkiv and an examination of the body of citizen PERSON_11 were inspected,
accompanied by diagrams and photo tables (case file v. 2, pp. 1-15);
- report dated 02/22/2015 on an inspection of the incident scene, during which the explosion site on Marshal
Zhukov Avenue in Kharkiv and an examination of the body of citizen PERSON_10 were inspected,
accompanied by diagrams and photo tables (case file v. 2, pp. 17-21);
- order dated 03/12/2015 to admit physical evidence in the criminal proceedings, specifically the personal
belongings of PERSON_10 with traces of the explosion and damage resulting from the explosion (case file v. 2,
p. 22);
- autopsy report on the body of PERSON_11 dated 02/03/2015, accompanied by a photo table (case file v. 2, pp.
32-36);
- order dated 03/13/2015 to admit physical evidence in the criminal proceedings, specifically the personal
belongings of PERSON_11 with traces of the explosion and damage from the explosion (case file v. 2, p. 37);
- autopsy report on the body of PERSON_13 dated 02/24/2015 (case file v. 2, pp. 39-40);
- autopsy report on the body of PERSON_12 dated 02/24/2015 (case file v. 2, p. 41);
- report dated 02/22/2015 on an inspection of the incident scene, during which the undergarments of
PERSON_13, PERSON_12, and PERSON_17 were seized (case file v. 2, pp. 43-46);
- order dated 03/13/2015 to admit physical evidence in the criminal proceedings, specifically the personal
belongings of PERSON_17, PERSON_13, and PERSON_12 (case file v. 2, pp.
- 464 -
PERSON PERSON "Wheel" "Wheel" PERSON NUMBER 1199
47, 49, 51);
- report dated 02/22/2015 on an inspection of the incident scene, during which the personal belongings of
PERSON_23, PERSON_14, PERSON_22, PERSON_18, and PERSON_21 with trace of the explosion (case
file v. 2, p. 57);
- report dated 02/24/2015 on an examination of objects, specifically the personal belongings of PERSON_23,
PERSON_14, PERSON_22, PERSON_18, and PERSON_21 (case file v. 2, pp. 58-59);
- order dated 03/04/2015 on admitting the personal belongings of PERSON_23 as physical evidence in the
criminal proceedings (case file v. 2, p. 60);
- reports dated 02/24/2015 on the examination of objects, specifically the personal belongings of PERSON_ 14,
PERSON_22, PERSON_18, and PERSON_21 (case file v. 2, pp. 65, 68, 74, 77);
- order dated 03/04/2015 on admitting the personal belongings of PERSON_14, PERSON_22, PERSON_18,
and PERSON_21, which bear traces of the explosion, as physical evidence in the criminal proceedings (case file
v. 2, pp. 66, 69, 75, 79);
- report dated 02/22/2015 on an inspection of the incident scene, specifically the area located along the roadway
of Marshal Zhukov Avenue in Kharkiv, where the explosion occurred (case file v. 2, pp. 81-83);
- report dated 02/22/2015 on an inspection of the incident scene, specifically the area near the garage cooperative
(case file v. 2, pp. 84-85);
- report dated 02/23/2015 on the results of removing information from electrical information systems, with an
appendix in the form of a disk with photo and video files concerning the commission of the terrorist act on
Marshal Zhukov Avenue in Kharkiv on 02/22/2015 (case file v. 2, pp. 89-91);
- report dated 03/13/2015 on an examination of video materials, specifically a disk with photo and video files
concerning the commission of the terrorist act on Marshal Zhukov Avenue in Kharkiv on 02/22/5015, with
appendices in the form of photo tables (case file v. 2, pp. 92-101);
- order dated 03/20/2015 to admit physical evidence in the criminal proceedings, specifically the aforementioned
compact disc with photo and video files concerning the commission of the terrorist act on Marshal Zhukov
Avenue in Kharkiv on 02/22/2015 (case file v. 2, pp. 102-103);
- report dated 02/23/2015 on an examination of video recordings from a video recording device seized from the
“Behind the Wheel” Garage Cooperative, with appendices (case file v. 2, pp. 105-110);
- order dated 03/13/2015 to admit as a document the compact disc with video files from the video recording
device installed at the entrance to the “Behind the Wheel” Garage Cooperative (case file v. 2, p. 111);
- report dated 02/22/2015 on an inspection of the incident scene, during which fragments were removed from
the body of PERSON_20, with an appendix in the form of a photo table (case file v. 2, pp. 115-116);
- report dated 02/23/2015 on an inspection of the incident scene, during which objects were removed from the
bodies of PERSON_18 and PERSON_23 (case file v. 2, p. 117);
- report on an inspection dated 03/03/2015, during which soil samples were removed from the area adjacent to
the explosion site (case file v. 2, pp. 124-131);
- order dated 03/27/2015 to admit physical evidence in the criminal proceedings, specifically soil samples taken
from near the explosion site, as well as the Ford Sierra vehicle with license plate number NUMBER_16 and
accretions from the sapper shovel (case file v. 2, p. 132);
- 465 -
4'PERSON 5'- NUMBER NUMBER NUMBER NUMBER NUMBER NUMBER NUMBER NUMBER NUMBER NUMBER 2200
- order dated 03/22/2015 to admit physical evidence and determine its place of storage with respect to the
remnants from the detonation of grenades, explosives, and explosion initiators (case file v. 2, p. 134);
- order dated 03/24/2015 to admit physical evidence in the criminal proceedings, specifically shrapnel and
fragments of the explosive device seized during the inspection of the incident scene and fragments removed
from the bodies of the wounded and deceased (case file v. 2, pp. 135-136);
- order dated 03/25/2015 to admit physical evidence in the criminal proceedings, specifically ammunition seized
during a search of the PERSON_4’s place of residence (case file v. 2, p. 137);
- order dated 03/26/2015 to admit physical evidence in the criminal proceedings, specifically an RGD-5 grenade
with an UZRGM fuse, seized during a search of PERSON_5’s place of residence (case file v. 2, p. 138);
- order dated 03/27/2015 to admit physical evidence in the criminal proceedings, specifically biological samples
of PERSON_6 (case file v. 2, p. 140);
- order dated 03/27/2015 to admit physical evidence in the criminal proceedings, specifically biological samples
of PERSON_5 (case file v. 2, p. 142);
- video recording from the video surveillance cameras at Kharkiv metro stations saved to a compact disc, as well
as a map of im. O.S. Maselskoho and im. Marshala Zhukova metro stations, which contain video images of
PERSON_4, who enters the im. O.S. Maselskoho metro station at 12:49 PM on 02/22/2015 and exits the im.
Marshala Zhukova metro station at 01:03 PM on 02/22/2015 (case file v. 2, pp. 147-149);
- report dated 03/12/2015 on the examination of video files, specifically video recordings from the video
surveillance cameras of the Kharkiv metro system, from the im. O.S. Maselskoho and im. Marshala Zhukova
metro stations, with appendices in the form of photo tables (case file v. 2, pp. 150-154);
- temporary access protocols for items and documents and a search and seizure from MTS Ukraine PrJSC dated
03/11/2015, from Kyivstar PrJSC dated 03/11/2015, and from Astelit LLC dated 03/12/2015, with appendices
in the form of compact discs (case file v. 2, pp. 162-164, 170-172, 178-180);
- reports dated 03/25 – 03/27/2015 on the examination of compact discs obtained via temporary access from
MTS Ukraine PrJSC, Kyivstar PrJSC, and Astelit LLC, with information concerning the identification of mobile
phones, as well as the mobile operator numbers used by the accused, with appendices in the form of a detailed
list of mobile phone contacts, as well as diagrams and breakdowns. According to the detailed list of connections:
- from No. NUMBER_17 (a Samsung GT-E1200I mobile headset: IMEI: NUMBER_14, belonging to
PERSON_5) contact was only made with No. NUMBER_18 (PERSON_6) and No. NUMBER_19
(PERSON_4).
- from No. NUMBER_18 (a Samsung GT-E1200I mobile headset: IMEI: NUMBER_20, belonging to
PERSON_6) contact was only made with No. NUMBER_17 (PERSON_5) and No. NUMBER_19
(PERSON_4).
PERSON_6, for his part, made contact from Nos. NUMBER_21 and NUMBER_22 (CAT B25 DualSim Black
mobile headset, IMEI_1: NUMBER_23, IMEI_2: NUMBER_24) with numbers used by PERSON_5
(NUMBER_1, NUMBER_25, NUMBER_26, and NUMBER_27) and PERSON_4 (NUMBER_28,
NUMBER_29) (case file v. 2, 2, pp. 181-222);
- 466 -
PERSON NUMBER NUMBER NUMBER 6'NUMBER "group"
"ANTON" "FRY" NUMBER subscribers' NUMBER 5'fmal NUMBER Kharldv 5'5'j udge Kharldv 5'5'2211
- report dated 02/26/2015 on the arrest of suspect PERSON_5 (case file v. 3, pp. 1-4);
- video recording of the interrogation of PERSON_5 dated 03/06/2015, with the participation of an explosives
specialist, during which PERSON_5 explained and showed how and according to which schematics he
assembled the remote control system for the MON-100 mine, which was used by him, PERSON_6, and
PERSON_4 in committing the terrorist act on 02/22/2015. The explosives expert later confirmed the viability
schematics shown by PERSON_5 and their consistency with the schematics used in the explosive device based
on a MON-100 mine that exploded on 02/22/2015 on Marshal Zhukov Avenue in Kharkiv, with an appendix in
the form of a compact disc (case file 3, pp. 70-74);
- report dated 02/26/2015 on the arrest of PERSON_4 (case file v. 3, pp. 96-99);
- report on the inspection of the Samsung GT-E1232B Duos mobile phone IMEI NUMBER_30 seized from
PERSON_4, containing the telephone numbers of PERSON_5 and 06, which he concealed under the names of
PERSON_57 (NUMBER_31, NUMBER_32) and MY VITEK (NUMBER_33) (case file v. 3, pp. 101-102);
- order dated 03/02/2015 to admit physical evidence in the criminal proceedings, specifically the mobile phone
of PERSON_4 (case file v. 3, p. 103);
- report dated 02/26/2015 on the arrest of PERSON_6 (case file v. 3, pp. 205-211);
- report dated 03/21/2015 on the inspection of PERSON_6’s Samsung E1200I mobile phone No. NUMBER_34,
with SIM card NUMBER_2, which he used to communicate exclusively within the so-called “closed group”
with PERSON_46 [sic] and PERSON_5. This telephone contains the contacts details of only the two
aforementioned persons. In the interest of secrecy, these contacts were recorded as “ANTON” NUMBER_1,
which was used by PERSON_5, and “SMALL-FRY” [MELKIY] NUMBER_3, which was used by PERSON_4.
The telephone also contains SMS correspondence with PERSON_5 and PERSON_4, which, when analyzed
together with information about the mobile subscribers’ connections obtained from operator MTS Ukraine
PrJSC, i.e., the telephone connection traffic of these numbers, and an inspection of the Samsung E1200I mobile
phone with number NUMBER_35 (PERSON_5), confirm that PERSON_6 and PERSON_4, together with
PERSON_5, were involved in laying the explosive device based on a MON-100 mine and subsequently checking
the location where it was laid on Marshal Zhukov Avenue on the night of 02/22/2015 between the hours of 02:00
AM and 03:40 AM, and that this group agreed to meet up and did in fact meet up at PERSON_5’s home after
10:30 AM on 02/22/2015 before the final step of implementing their criminal plan: heading out to Marshal
Zhukov Avenue to activate the explosive device they had laid (case file v. 3, pp. 213-214);
- order dated 03/23/2015 to admit as physical evidence and transferring it for safekeeping, specifically: the GTE1200I
Samsun mobile phone, IMEI NUMBER_20 with battery and MTS SIM card (case file v. 3, p. 215);
- report by the deputy chief of the 3rd Section of the Main Department for Counterintelligence Protection of the
Economy of the Kharkiv Regional Directorate of the SBU concerning PERSON_5’s involvement in the terrorist
act and the presence of weapons at his home (case file v. 4, p. 1);
- report on a search of PERSON_5’s place of residence (ADDRESS_3), during which munitions and explosives
were seized (case file v. 4, pp. 2-6);
- ruling of the investigating judge of the Kyivsky District Court of Kharkiv dated 02/26/2015 authorizing a search
at PERSON_5’s place of residence (case file v. 4, pp. 9-10);
- report dated 03/25/2015 on the inspection of a flash drive seized during a search of PERSON_5’s apartment,
with appendices, concerning preparations for the terrorist act (case file 4, pp. 11, 19, 21);
- report dated 03/20/2015 on the examination of items seized during a search from PERSON_5 (case file 4., pp.
22-23);
- 467 -
5'5'5'5'NUMBER "group" subscribers' 5'5'NUMBER 5'4'j udge 6'6'j udge 6'2222
- report dated 03/21/2015 on the examination of items seized from PERSON_5 during a search, specifically
PERSON_5’s computer, including the electronic mailbox INFORMATION_9, which PERSON_5 used to
correspond with officers of the Russian special services regarding the preparations for and commission of the
terrorist act on 02/22/2015 (case file v. 4, pp. 24-29);
- report dated 03/02/2015 on the examination of items and documents, including the PERSON_5’s sapper shovel,
which he used to lay the explosive device based on a MON-100 mine on Marshal Zhukov Avenue on 02/22/2015
(case file v. 4, pp. 32-33);
- report dated 03/21/2015 on the examination of PERSON_5’s mobile phones and mobile operator cards,
specifically PERSON_5’s Samsung E1200I mobile phone No. NUMBER_36 with SIM card number
NUMBER_1, which he used to communicate within the so-called “closed group” with PERSON_46 [sic] and
PERSON_6. In addition, the telephone contains SMS correspondence with PERSON_6 and PERSON_4, which,
when analyzed together with information about the mobile subscribers’ connections obtained from operator MTS
Ukraine PrJSC, i.e., the telephone connection traffic of these numbers, and an inspection of the Samsung E1200I
mobile phone with number NUMBER_2 (PERSON_6), confirm that PERSON_6 and PERSON_4, together with
PERSON_5, were involved in laying the explosive device based on a MON-100 mine and subsequently checking
the location where it was laid on Marshal Zhukov Avenue on the night of 02/22/2015 between the hours of 02:00
AM and 03:40 AM, and that this group agreed to meet up and did in fact meet up at PERSON_5’s home after
10:30 AM on 02/22/2015. The examination also revealed that the phone contains PERSON_5’s correspondence
during the period when he was preparing to commit the crime from 02/19/2015 to 02/22/2015 with telephone
numbers from the closed communication group that were used by PERSON_6 (NUMBER_2) and PERSON_4
(NUMBER_3) (case file v. 4, pp. 34-45);
- report by the deputy chief special investigator of the Main Department for Counterintelligence Protection of
the Economy of the Kharkiv Regional Directorate of the SBU concerning PERSON_5’s involvement in the
terrorist act and the presence of weapons at his home (case file v. 4, p. 71);
- report dated 02/26/2015 on a search of PERSON_4’s place of residence (ADDRESS_2), during which officers
seized ammunition and explosives, which PERSON_4 had acquired and stored without the permit required by
law (case file v. 4, pp. 72-78);
- ruling of the investigating judge of the Kyivsky District Court of Kharkiv dated 02/26/2015 authorizing a search
at the place of residence of PERSON_4 (case file v. 4, p. 81);
- report by the deputy chief investigator of the Information Security Counterintelligence Department of the
Kharkiv Regional Directorate of the SBU concerning PERSON_6’s involvement in the terrorist act and the
presence of weapons at his home (case file v. 4, p. 165);
- report dated 02/06/2015 on a search of PERSON_6’s place of residence (ADDRESS_5). during which officers
seized ammunition and explosives that PERSON_6 had acquired and stored without the permit required by law,
as well as other items that have evidentiary value in the proceedings (case file v. 4, pp. 166-169);
- ruling of the investigating judge of the Kyivsky District Court of Kharkiv dated 02/26/2015 authorizing a search
at PERSON_6’s place of residence (case file v. 4, pp. 172. 173);
- report dated 03/17/2015 on an examination of a laptop computer, mobile phone with SIM cards, and data
storage media, and the order dated 03/17/2015 to admit them as physical evidence (case file v. 4, pp. 174-178);
- report dated 02/26/2015 on an examination of explosive items (with appendices and a photo table) seized from
PERSON_5 (case file v. 4, pp. 185-191);
- report dated 02/26/2015 on an examination of explosive items (with appendices and a photo table) seized from
PERSON_6 (case file v. 4, pp. 192-198);
- 468 -
- report dated 02/26/2015 on an examination of explosive items (with appendices and a photo table) seized from
PERSON_4 (case file v. 4, - 'NUMBER from the materials (case file v. 4, pp. 212-220);
- report dated 03/27/2015 on an examination of the Lenovo A369i mobile phone seized during a search of
PERSON_4, NUMBER 37 and number NUMBER_38 (case file v. 4, pp. 248-249);
explosive substances, products of explosion and firearm discharge No. 37/2015 dated 03/23/2015, according to
ADDRESS_6. — — — — — — — — — "ready"
"on" "— - thyristor"
("cathode" "— unit" 2233
pp. 199-208);
`ruling of the Kyivsky District Court of Kharkiv dated 02/27/2015 authorizing a search of the Ford Sierra
automobile belonging to PERSON_5 and report dated 03/03/3015 on a search of the Ford Sierra automobile
with state registration number NUMBER_4, from which a flash drive was recovered, as well as soil samples
during which its serial number was determined, as well as the SIM cards with number
NUMBER_- findings of the forensic comprehensive expert examination of explosives and the expert examination of
which an improved explosive device based on a MON-100 anti-personnel directional fragmentation mine, radio
controlled by telephone, exploded at the scene of the incident on 02/22/2015 opposite the five-story building at
The explosive device probably consisted of the following products and components: an
industrially-produced MON-100 anti-personnel directional fragmentation mine (housing without a device
for installation and mounting); an initiator (detonator) – industrially-produced electric detonator, probably
an EDP, EDP-R, ED-8, etc.; a remote explosion control system: radio signal reception and electric pulse
control unit - a mobile phone, probably a Samsung E1200 indigo blue with a SIM card, probably MTS or
LIFE, etc.; an additional electric power supply unit – a 9V power unit (battery), 6F22-type (salt), NASHA
SILA brand, model series X2 NASHA SILA 6F22 1 tray G3 * double power, and probably one or several
9V 6F22 or 6LR61 batteries of an undetermined model (alkaline); initiating pulse control and unauthorized
detonation prevention (electric key) – probably a low-power thyristor; fastening elements for components
and assemblies of the explosive device: electrical connection elements – electric copper multi-wire
conductors in black polymer insulation casing; fastening component material – black PVC electrical
insulation tape; electrical connection insulation (splice joints) – blue PVC electrical insulation tape; 5)
means of transportation and camouflage (probably) – white plastic bag. The likely composition of the IED
could include additional elements such as electrical switches (fuses), operating check elements (low-power
bulbs), shunt resistors and capacitators, current and voltage amplifiers, etc. At the same time, no clear and
definite traces or fragments of such additional elements were found in the materials and objects submitted
for examination. Graphic illustrations of the structure of the IED that exploded on Marshal Zhukov Avenue
on 02/22/2015 – a schematic diagram and sketch – are shown in diagrams 1 and 3. The principle and
procedure for the operation of the examined improvised explosive device are as follows: in the “ready”
position, the mobile phone is in “on” mode and the “initiator – additional power supply unit – thyristor”
electrical circuit is open. According, no current is applied to the initiator or the control contact of the
thyristor. When a call is made to the SIM card number installed in the mobile phone, a positive command
pulse is given to the control contact of the thyristor, which opens the thyristor (“anode-cathode” section),
closes the “Initiator – additional power supply unit” electrical circuit, and triggers the electric detonator,
thereby detonating the charge and launching the fragments of the MON-100 mine. The purpose of explosive
devices is generally defined by their ability to strike certain objects. Therefore, the purpose and strike
capabilities of the examined IED are defined by the characteristics of the MON-100 mine and the explosion
execution system. The MON-100 mine is designed for controlled, targeted (directional) destruction of
personnel and unarmored vehicles. The destructive capabilities of the MON-100 mine are described in
Table 6 and in Diagram 3. The radio-controlled improvised explosive device that exploded at 9/1 Marshal
Zhukov Avenue on 02/22/2015 had the function of controlling the time of execution of the explosion and
thus had the functions of target selection and trigger time selection. The explosive device was placed in a
snowdrift on the right side of the road (on the corner) at the intersection of the exit from the Behind the
Wheel Garage Cooperative and Marshal Zhukov Avenue. The
- 469 -
- findings of the forensic comprehensive expert examination of explosives and the expert examination of
explosive substances, products of explosion and firearm discharge No. 49 dated 03/05/2015, according to which
(groups of examined objects Nos. 1-3), which do not bear any traces of interference with their structure, which
probably means that they contain a — — - — detonator's — — — from each other; the six F-1 grenade bodies (group of examined objects No. 1) and six UZRGM (UZRGM-2)
detonator fuses (group of examined objects No. 2) in the standard combined state form six hand-held defensive
fragmentation F-1 grenades, which constitute munitions. The items submitted for examination — the six F-1
objects No. 2), EDP-R electric detonator (object No. 3) and two EDP electric detonators (group of examined
objects No. 4) are suitable for causing an explosion (case file v. 5, pp. 166-175);
2244
explosive device was probably placed in a white plastic bag, which may have served the functions of
masking and transportation. Manufacturing and using the explosive device that went off at the scene of the
incident required a knowledge of the schematic diagram of said explosive device and the ability to do basic
electric work, such as tinning and soldering. It should be noted that this knowledge and skill-set does not
necessarily require special professional knowledge, special education, or special training in mines and
explosives, but can be obtained independently from open sources that are readily accessible to the public.
As for designing (drawing up the basic and functional schematics of) explosive devices, this requires a
fundamental knowledge of the theory of electric and radio circuits, demolition and/or sapper engineering
training at the level of an officer of engineering troops, as well as practical experience in blasting operations
and combat use of explosive devices (case file v. 5, pp. 10-73);
the six objects similar in appearance to the casings of F-1 grenades are in fact the casings of F-1 hand grenades
high-explosive substance – 50-56 grams of TNT; the six items that appear
to be detonator fuses are in fact UZRGM-type (UZRGM-2) industrially-produced hand grenade fuses
(groups of examined objects No. 4-6) which probably contain a charge of a combined explosive – 0.1-02
grams of TNRS + lead azide and 1 gram of explosion-resistant TEN or RDX. When the groups of examined
objects Nos. 1-3 (the six F-1 fragmentation grenade bodies) are combined with the groups of examined
objects Nos. 4-6 (the six UZRGM (UZRGM-2) hand grenade fuses), they form industrial explosive devices
– six F-1 hand fragmentation grenades, which constitute munitions. The three objects with wires that look
like detonators are electrical initiators – an EDP-r electric detonators (examined object No. 7) and EDP
electric detonator (examined object Nos. 8 and 9). They do not constitute munitions. The electric
detonator’s casing contains a charge of combined explosive – 0.1-0.2 grams of TNRS + lead azide and 1
gram of TEN or RDX. The two objects with wires that look like initiators (group of examined objects No.
10) are the firing mechanism of the MVE-72 fuse and do not constitute munitions. The plastic substance
(examined objects Nos. 11-13) is an RDX-based explosive with a mass of 1,060, 1,309 grams, and 1,010
grams respectively.
The metal object that looks like the body of an RGD-5 grenade (examined object No. 14) is a training body
of an RGD-5 hand grenade and does not contain an explosive charge. The object that looks like a fuse
(examined object No. 15) is a UZRGM (UZRGM-2)-type training fuse, which does not contain an explosive
charge. When examined object No. 15 (training body of an RGD-5 hand grenade) is combined with
examined object No. 15 (UZRGM (or UZRGM-2) training fuse, the resulting device does not constitute a
type of munitions. The loose substance similar in appearance to gunpowder (examined objects No. 16.1
and No. 16.2) is a propellant explosive – smokeless gunpowder with a mass of 201 grams and 170 grams,
respectively (case file v. 5, pp. 143-162);
- findings of the forensic comprehensive expert examination of explosives and the expert examination of
explosive substances, products of explosion and firearm discharge No. 81/2015 dated 03/19/2015, according to
which the objects submitted for examination – six F-1 grenade bodies (group of examined objects No. 1), six
UZRGM (UZRGM-2) detonator fuses (group of examined objects No. 2), EDP-R electric detonator (object No.
3) and two EDP electric detonators (group of examined objects No. 4) do not constitute munitions in isolation
– grenade bodies (group of examined objects No. 1), six UZRGM (UZRGM-2) detonator fuses (group of examined
- 470 -
5'plate "Wheel" common generic affiliation. from common general file 4'16-caliber), suitable for firing. file 200-202);
6'- 5'samples from the Samsung phone, IMEI - NUMBER_14 and — NUMBER investigator's located in the iliac region
energy,
2255
- findings of the soil science expert examination No. 5 dated 03/16/2015, according to which the layers of
soil taken from PERSON_5’s sapper shovel and from the materials of the Ford Sierra car with state license
NUMBER_4, and the soil samples collected to the right of the explosion site and across the paved
entrance to the “Behind the Wheel” Garage Cooperative, submitted in packets Nos. 7 and 12, have a
The other soil samples from the incident site, submitted in packets Nos. 2-11
for the examination report dated 03/03/2015 and the layers of soils removed from the sapper shovel and
the materials of the Ford Sierra automobile with state license plate NUMBER_4 do not have a
affiliation (case v. 5, pp. 179-189);
- ballistic expert report No. 111 dated 02/28/2015, according to which the 130 rounds seized during a search
of PERSON_4’s place of residence constitute ammunition: 46 5.45x39 AK 5.45 mm caliber combat
intermediate cartridges designed to be fired from rifled combat weapons of the appropriate caliber and
chamber size (submachine guns, Kalashnikov machine gun systems); 56 12-caliber hunting cartridges
designed for shooting from 12-caliber smoothbore hunting rifles; 28 16-caliber hunting cartridges designed
for shooting from 16-caliber smoothbore rifles; 77 spent cartridges (20 5.45x49 AK, 39 12-caliber, and 18
The remaining 53 rounds of ammunition are also probably suitable for
shooting (case v. 5, pp. 193-195);
- report dated 03/05/2015 on obtaining samples from PERSON_6 for expert examination (case file v. 5, pp.
196-197);
- report dated 03/05/2015 on obtaining samples from PERSON_5 for expert examination (case file v. 5, pp.
198-199);
- report dated 03/05/2015 on obtaining samples from PERSON_4 for expert examination (case file v. 5, pp.
- according to Expert Report No. 17 of the SRCEC MD MIAU for the Kharkiv Region dated 03/20/2015,
cells with nuclei that matched the genetic markers from PERSON_6’s saliva sample were found on the
Samsung phone, IMEI – NUMBER_20 with mobile operator NUMBER 11, which was seized on
02/26/2016 during a personal search of PERSON_6, specifically: on wipe samples from the exterior and
interior surfaces of the telephone, SIM card and battery (case file v. 5, pp. 206-214);
- according to Expert Report No. 16 of the SRCEC MD MIAU for the Kharkiv Region dated 03/20/2015,
cells with nuclei that matched the genetic markers from PERSON_5’s saliva sample were found on wipes
– its SIM card and battery, and from the interior
surface of the Samsung phone, IMEI – NUMBER_15 and battery (case file v. 5, pp. 217-230);
- forensic medical report No. 159-a/15, according to which minor PERSON_16 suffered abrasions and
bruises of the upper third of the right shin in connection with the events of 02/22/15. The existing injuries
were caused by the action of blunt solid objects, possibly from the action of an explosive device, which is
indicated in the investigator’s order. In terms of degree of severity, these are light injuries (case file v. 6,
pp. 2-3);
- forensic medical report No. 160-a/15, according to which PERSON_17 suffered the following injuries in
connection with the events of 02/22/15: an exit wound to the soft tissues of the left forearm, which
constitutes a minor bodily injury that caused a short-term health disorder at the time of the forensic medical
examination; a blunt wound to the soft tissues of the posterior surface of the chest on the left side with a
comminuted fracture of the left scapula and the presence of a foreign body of metallic density up to 13 mm
in diameter located between the scapula and the second rib, which constitute moderate injuries based on
the duration of the health disorder; a blunt injury to the soft tissues of the lumbar region on the left side a
comminuted fracture of the left ilium with the displacement of small bone fragments into the iliac muscle
and the presence of a foreign body with a metal density up to 11 mm in diameter, on the left, which constitute moderate injuries based on the duration of the health disorder. The listed
injuries were caused by the action of objects with a limited area of traumatic surface that had significant
- 471 -
19-20);
shrapnel blunt
which
investigator's PERSON 1 9 investigator's investigator's investigator's investigator's 142-143);
2266
such as could be factors of an explosion. The formation of these injuries could have been caused by the
destructive elements (fragments) resulting from an explosion (case file v. 6, pp. - forensic medical report No. 565-aya/15, according to which PERSON_ 18 had one firearm wound to the soft tissue in the lumbar region on the right and left sides and around the right shoulder, were formed within the period indicated in the investigator’s order (case file v. 6, pp. 50-51);
- forensic medical report No. 562-aya/15, according to which PERSON_19 was found to have the following
injuries: explosive trauma. Shrapnel exit wound to the right shin with damage along the wound channel to
the soft tissue and the right fibula at the level of the middle third in the form of an open comminuted fracture.
This damage was caused by the shock of traumatic impact of a blunt, hard object with limited traumatic
surface (a fragment that most likely formed as a result of the detonation of an explosive device) and could
have been received during the period indicated in the investigator’s order. As for the severity of the
explosive trauma, the shrapnel exit wound to the right shin with damage along the wound channel to the
soft tissues and the right fibula at the level of the middle third in the form of an open comminuted fracture
was not life-threatening at the time when it was inflicted but caused a long-term health disorder lasting
more than 3 weeks (21 days), and for his region constitutes a moderate injury. Wounds (in the area of the
exit wound to the right lower leg) are located on the medial surface at the border of the middle and lower
third and on the lateral surface in the upper third (case file v. 6, pp. 82-83);
- forensic medical report No. 567-aya/15, according to which PERSON_20 suffered: a blunt shrapnel
wound to the anterior outer surface of the lower third of the left thigh with partial crushing of the muscles
along the wound channel, with the presence of a foreign body (a rectangular cylindrical shape measuring
about 12x0.8 cm, which was removed). This injury was caused by the action of a blunt, solid object with a
limited impact surface, which could have been a fragment formed in the explosion of an explosive device,
and could have been caused within the time period specified in the investigator’s order (case file v. 7, pp.
92-93);
- forensic medical report No. 561-aya/15, according to which PERSON_21 was found to have the following
bodily injuries: explosive trauma. Shrapnel wounds to the lower extremities and left hand: exit wound to
the right knee; penetrating blunt wound to the left thigh with damage along the course of the wound channel
to the soft tissue; superficial laceration of one finger on the left hand. These injuries were formed as a result
of the traumatic impact of blunt, hard objects with a limited traumatic surface (fragments that were most
likely formed as a result of the detonation of an explosive device) and could have been received within the
time period specified in the constituent part of the investigator’s order (case file v. 6, pp. 111-112);
- forensic medical report No. 563-aya/15, according to which PERSON_22 had a firearm shrapnel blunt
wound to the soft tissues of the upper third of the left thigh, which was formed within a period that matches
the one indicated in the investigator’s order (case file v. 6, pp. - forensic medical report No. 566-aya/15, company to which PERSON_47 suffered the following injuries:
a blunt shrapnel wound of the anterior surface of the right thigh in the lower third, with soft tissue damage
along the wound channel, with the presence of a foreign body blindly ending in the muscles and
subcutaneous fat. This damage was formed as a result of the action of a blunt, hard object with a limited
impact surface, which could also be a fragment formed during the explosion of an explosive device and
could have been caused within the time limit specified in the investigator's order (case file v. 6, pp. 182-
183);
- forensic medical report No. 568-aya/15, according to which PERSON_24 suffered the following injuries:
a shrapnel tangential superficial wound to the inner surface of the right foot. This damage resulted from the
action of a blunt hard object with a limited impact surface, which could also be a fragment formed during
the explosion of an explosive device and could have been caused within the period specified in the
investigator's order. As for the degree of severity, this is a light bodily injury (case file v. 7, pp. 210-211);
- 472 -
l 1:
Pt 2277
- forensic medical report No. 66-at/15, according to which, in connection with the events of 02/22/2015,
PERSON_13 suffered chest injuries in the area of the costal arch on the left side along the mid-clavicular line,
penetrating into the chest cavity, then through the left dome of the diaphragm, penetrating into the abdominal
cavity with damage to the liver (marginal), stomach (through), tail of the pancreas, spleen, left kidney, then the
body of the 2nd lumbar vertebra, where the fragment was found; wound to the right iliac region, penetrating into
the abdominal cavity, with damage to the ileum (through), then the sacrum on the left. Injuries suffered by
PERSON_13, in relation to a living person, are classified as serious bodily injuries according to the criterion of
danger to life. The cause of death of PERSON_13 was a severe cumulative explosive injury to the internal organs
and bones of the skeleton and complications thereof (traumatic shock) (case file v. 7, pp. 2-5);
-forensic medical report No. 582-DM/15, according to which person_10 was found to have suffered one
penetrating blunt wound to the head, one penetrating blunt wound to the left buttock, one non-penetrating blunt
wound to the chest on the left side, and bruises on the upper eyelid of the right eye, along the inner surface of
the left shoulder, and a bruised wound on the left thigh. The cause of death of PERSON_10 was the abovementioned
penetrating shrapnel wounds to the head and torso. All these injuries were formed while PERSON_48
was still alive, shortly before death, in one short period of time. These injuries were formed as a result of the
action of destructive factors of the explosion and the piercing action of fragments, while the victim was located
a short distance from the center of the explosion (case file v. 2, pp. 14-20);
- forensic medical report No. 65-at/15 according to which, in connection with the events of 02/22/2015, in
PERSON_12 suffered a head injury with the presence of a slaughter-laceration in the frontal area on the left side
and a slaughter-laceration in the parietal-occipital region on the right, bruising of the soft integuments of the
head from their inner surface in the projection of these wounds, multi-splinter fractures of the bones of the cranial
vault with the transition of fractures to the base of the skull, rupture of the dura mater with damage to the upper
one sagittal sinus, hemorrhages above and below the dura mater (epidural and subdural hemorrhage),
hemorrhage under the soft meninges, and brain contusion with large areas of contusion (crushing of the brain
substance). The cause of death of PERSON_12 was severe traumatic brain injury and complications that
developed as a result of edema - swelling-dislocation of the brain, hemorrhagic shock. In terms of severity, the
head injury to PERSON_12 constitutes a serious bodily injury according to the criterion of danger to life, in
relation to living persons.
Taking into account the nature of the injuries and the known circumstances of the case, the expert believes that
the formation of this injury could have been caused by a destructive element (fragment) as a result of the
explosion (case file v. 7, pp. 28-32);
- forensic medical report No. 564-aya/15, according to which PERSON_14 suffered: a firearm shrapnel blunt
wound to the upper third of the left shoulder; an exit firearm shrapnel wound to the soft tissues of the left lumbar
region; and a firearm shrapnel exit wound to the upper third of the left thigh with an exit hole in the left sciatic
region, which were formed within the time period specified in the investigator's order (case file v. 7, pp. 28-32);
- forensic medical report No. 583 DM/15, according to which the following injuries were found in PERSON_11:
blunt chest wound from the entrance wound in the projection of the lst intercostal space on the left side along the
clavicular line, which penetrates into the chest cavity with the formation of an indirect fracture of the 2nd left
rib on the border of the costal cartilage and the bone part of the rib, with through damage to the upper lobe of
the left lung, trachea, and upper lobe of the right lung, which extends beyond the chest cavity in the 2nd
intercostal space on the right along the scapula line with the formation of a perforated fracture of the right
scapula, blindly ending in the back muscles in the supraspinatus fossa of the right scapula, where a silver-black
metal fragment of approximately cylindrical shape measuring about 1.4x1x0.8 cm with pointed, deformed,
slightly melted edges was found; an abrasion in the projection of the anterior surface of the right knee. The
penetrating blunt wound to the chest of PERSON_49 was formed while he was still alive, shortly before the
onset of his death; taking into account the nature of the entrance wound and the nature of the metal fragment
found in the muscles of the back at the end of the wound channel, it should be assumed that said wound was
formed as a result of the piercing action of the fragment of an explosive projectile when the victim was found
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system's NUMBER system's 2288
a long distance from the epicenter of the blast. The abrasion in the projection of the anterior surface of the right
knee, taking into account its nature, was formed from the action of a blunt object, the individual characteristics
of the traumatic surface of which were not reflected in the damage, by the mechanism of friction-sliding shortly
before the death of PERSON_49 or, more likely, in the process of dying. The cause of death of citizen
PERSON_49 was a penetrating shrapnel wound to the chest with damage to internal organs, complicated by
acute blood loss. In terms of degree of severity, the explosive injury in the form of a penetrating shrapnel wound
to the chest constitutes a serious bodily injury according to the criterion of danger to life. The abrasion in the
projection of the cervical surface of the right knee constitutes mild bodily injury (case file v. 7, pp. 79-83);
- forensic medical report No. 664-aya/15, according to which PERSON_15 suffered: a shrapnel blunt wound to
the suprapubic region with the presence of a foreign body of metallic density (size 15x12x30 mm) in soft tissues,
which was not removed during the operation .This damage was formed as a result of the impact of a blunt hard
object with a limited impact surface, which may be a fragment formed during the explosion of an explosive
device, and could have been caused within the time period specified in the investigator's order (case file v. 7, pp.
99-100);
- inspection report and order dated 03/11/2015 or admit the personal belongings of PERSON_15 as physical
evidence (case file v. 7, pp. 107-108);
- report on the presentation of photographs to a person for identification dated 02/26/2015, specifically the
identification of PERSON_5 by PERSON_43, and report on the presentation of photographs to a person for
identification dated 02/26/2015, specifically the identification of PERSON_5 by PERSON_42. During these
investigative actions, PERSON_43 and PERSON_42 identified PERSON_5 as the person who, on February 19
and 21, 2015, purchased at the mobile phone and accessory sales point located in the underpass of the Kharkiv
metro system’s Proletarska metro station, where the witnesses work as salesmen, SIM card NUMBER_8,
together with a Samsung E1200 mobile phone, which he used to make the remote control system for the
explosive device based on a MON-100 mine, as well as a Nokia 1110 mobile phone an SIM card with number
NUMBER_6, which PERSON_5, PERSON_6, and PERSON_4 subsequently used to make a call to the
Samsung E1200 mobile terminal with number NUMBER_8, installed in the remote control system of the MON-
100 mine (case file v. 8, pp. 20-23, 24-27);
- report on the presentation of photographs to a person for identification dated 02/26/2015, specifically the
identification of PERSON_6 by PERSON_42. During this investigative action, PERSON_42 identified
PERSON_6 as the person next to PERSON_5 when the latter was purchasing mobile phones and accessories on
February 19, 2015, at the mobile phone and accessory sales point located in the underpass of the Kharkiv metro
system’s Proletarska metro station, where the witness works as salesman, SIM card NUMBER_8, together with
a Samsung E1200 mobile phone, which was used in the manufacture of a remote control system for an explosive
device based on a Mon-100 (Vol. 8, A. s. 28-31);
- report dated 02/27/2015 on an investigative experiment involving PERSON_6, with corresponding appendices
and a video recording of the investigative action, during which, with the participation of the defense attorney,
he spoke about the circumstances under which he prepared and committed the terrorist act on 02/22/2015 (case
file v. 8, pp. 48-55);
- report dated 02/27/2015 on an investigative experiment involving PERSON_5, with corresponding appendices
and a video recording of the investigative action, during which, with the participation of the defense attorney,
he told about the circumstances under which he prepared and committed the terrorist act on 02/22/2015 (case
file v. 8, pp. 56-76);
- report dated 02/27/2015 on an investigative experiment involving PERSON_4, with corresponding appendices
and a video recording of the investigative action, during which, with the participation of the defense attorney,
he told about the circumstances under which he prepared and committed the terrorist act on 02/22/2015 (case
file v. 8, pp. 77-96);
- report dated 02/27/2015 on an investigative experiment involving PERSON_4, with corresponding appendices,
conducted at the site of preparations for committing the terrorist act in the city of Kharkiv, during which, with
the participation of the defense attorney, he spoke about the circumstances under which he prepared and
committed the terrorist act on 02/22/2015 (case file v. 8, pp. 97-105);
- order to stop covert investigative activity and declassify files dated 03/27/2015 (case file v. 8. pp. 211-212);
- 474 -
2925BD 1 at fmdings, PERSON6 — accused's l 0 l 0;
l 1 l 8, 2299
- report No. 70/5-5967t dated 03/26/2015, DVD-R No. 2925/BD ZND and report No. 70/5-5966t dated
03/26/2015, DVD-R No. 2922/GV ZND on the results of covert investigative activity (audio and video
surveillance conducted in a publicly accessible place) dated 03/25/2015 with appendices, in relation to
PERSON_5 and PERSON_6 (case file v. 8, pp. 215-224. During said investigative activity, PERSON_5 and
PERSON_6 told persons who were being held with them 1at the pre-trial detention center about their
involvement in committing the terrorist act on 02/22/2015;
- Phonoscope expert report No. 8-3V3 dated 02/21/2017 on the results of covert investigative activity contained
on discs DVD-R No. 2925/GV ZND and DVD-R No. 2922/GV ZND and transcripts No. 70/5-5966t and No.
70/5-5967t dated 03/26/2015. According to the expert findings, the phonograms submitted for examination show
no signs of editing, selective overlay of recordings, or voice changes. The phonograms submitted for
examination that are contained in the audio files on a disc for laser reading systems No. 2925/GV ZND and No.
2922/GV ZND, based on the results of covert investigative activity, are suitable for identification of the person
speaking based on the voice and text according to the transcripts. The audio recordings submitted for
examination, which were recorded on data medium No. 2925/GV ZND, contain the voice of PERSON_5. The
audio recordings submitted for examination, which were recorded on data medium No. 2922/GV ZND, contain
the voice of PERSON_6 (case file v. 6, pp. 68-81);
- rulings of the investigating judge of the Kharkiv Regional Court of Appeal Nos. 2712T and 2713T dated
0/27/22015 [sic] authorizing covert investigative activity – audio and video surveillance and recording in a
publicly accessible place (the premises of the Temporary Detention Center Unified Special Institution of the
Main Directorate of the Ministry of Internal Affairs of Ukraine for the Kharkiv Region and the Kharkiv Pre-
Trial Detention Center) in relation to PERSON_5 and PERSON_6 (case file v. 6, pp. 92-95);
- DVD disc with a video recording from the surveillance cameras of the DIGMA store (case file v. 9, p. 245);
- report on the examination of said DVD disc with a video recording from the surveillance cameras of the
DIGMA store (case file v. 9, pp. 246-251), which contains files with a video recording of an Opel Omega driving
up to the DIGMA store at 01:24:44 PM on 02/22/2015, and PERSON_5 getting out of the vehicle;
- report on the presentation of items for identification from photographs, with the participation of witness
PERSON_26, during which the witness identified the blue Opel Omega belonging to PERSON_6, which the
witness saw in the courtyard of building No. 9/1 on Marshal Zhukov Avenue in Kharkiv on 02/22/2015
immediately after the terrorist act (case file v. 8, pp. 8-11).
The court also examined the following physical evidence containing information on the accused’s involvement
in committing the criminal offense, which the court has used as evidence of the facts established during these
criminal proceedings:
- personal belongings of PERSON_10 with traces of the explosion and damage caused by the explosion;
- service certificate of the deceased officer of the Main Directorate of the Ministry of Internal Affairs of Ukraine
for the Kharkiv Region PERSON_10;
- personal belongings of PERSON_11 with traces of the explosion and damage caused by the explosion;
- personal belongings of PERSON_17 with traces of the explosion and damage caused by the explosion;
- personal belongings of PERSON_12 with traces of the explosion and damage caused by the explosion;
- personal belongings of PERSON_23, PERSON_14, PERSON_22, PERSON_18, and PERSON_21 with traces
of the explosion;
- soil samples taken from near the site of the explosion and from the Ford Sierra automobile with state registration
number NUMBER_4 and accretions from the sapper shovel (case file v. 2, p. 132);
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5'accused's — 3300
- remnants from the detonation of grenades, explosives, and explosion initiators (case file v. 2, p. 134);
- shrapnel and fragments of the explosive device from the inspection of the incident scene and fragments from
the bodies of the wounded and deceased;
- ammunition seized during a search of the place of residence of PERSON_4;
- RGD-5 grenade with an UZRGM fuse, seized during a search of PERSON_5’s place of residence, according
to the order to admit physical evidence in the criminal proceedings dated 03/26/2015 (case file v. 2, p. 138);
- mobile phones, mobile operator cards, and a laptop computer;
- biological samples from PERSON_5, PERSON_4 and PERSON_6.
Based on the physical evidence examined by the court at the hearing pursuant to Chapter 4 § 4, i.e., the material
objects that were the instrument used to commit the criminal offence, that retained traces of it, or that contain
information that the court has used as evidence of a fact or circumstances established during the criminal
proceedings, including items that were objects of the criminal offense.
The court deems it necessary to point out that the immediacy of the examination of evidence means that the
court is required by law to examine all of the evidence gathered in a particular criminal proceeding by
questioning the accused, the victims, the witnesses, and the experts, examining the physical evidence, reading
out documents, playing back audio and video recordings, etc. This fundamental principle of criminal proceedings
is important for the full elucidation of facts in the criminal proceedings and for their impartial resolution. The
direct perception of evidence allows the court to properly examine and verify it (both each piece of evidence
individually and in conjunction with other pieced of evidence), to evaluate it according to the criteria set out in
Article 94(1) of the Criminal Procedure Code, and to form an impartial view of the actual facts of a specific
criminal proceeding.
Article 337 of the Criminal Procedure Code of Ukraine defines the scope of court proceedings and establishes
that court proceedings shall only be conducted in relation to the accused persons and only within the scope of
the charges brought against them, formulated and set out in the indictment, which is an essential guarantee of a
fair trial and resolution of the case.
If a person is found guilty, the court shall indicate in the reasons section of the verdict the wording of the charges
that the court deems to have been proven, with an indication of the place, time, method of commission, and
effects of the criminal offense, the forms of guilt, and the motives of the criminal offence.
The court can only base its findings on evidence that it has directly perceived during the trial.
After examining the evidence during the trial, the court may modify the legal qualification of a criminal offense
committed by a person if the new charge is not more serious, or may change the wording of the factual side of a
charge without modifying the legal qualification, if as a result of such change the wording of the factual side of
the charge is not materially altered or is closely associated with the original charge, provided that such change
is not detrimental to the accused’s position or his right to a defense.
According to the requirements of Article 94 of the Criminal Procedure Code of Ukraine, the court shall
evaluate the evidence according to its inner convictions based on a comprehensive, full and impartial
examination of all the facts of the criminal proceeding, in accordance with the law, and shall evaluate the
evidence in terms of its reliability, admissibility, accuracy, and the totality of the gathered evidence – in terms
of its sufficiency and relevance for issuing the relevant procedural decision. The evidence examined and verified
by the court in this case, which supports
- 476 -
defense's fmds defense's defense's accused's fmd,
3311
the guilt of PERSON_4, PERSON_5 and PERSON_6 of the charges brought against them, is verified and
consistent, and the court has no doubts as to its relevance and admissibility.
The defense’s motions with respect to each piece of evidence submitted by the prosecutor are clearly
inadmissible and are denied by the court for the following reasons:
The procedures for obtaining evidence set out in Article 84(2) of the Criminal Procedure Code of Ukraine
provide for adhering to the following requirements: 1) the obtaining evidence by the proper subject; 2) the
lawfulness of the procedural source of the evidence; 3) adherence to the procedural steps for obtaining evidence;
4) adherence to the rules for recording the progress and results of investigative and covert investigative activity.
The burden of proving the facts that form the basis for excluding evidence lies with the party that files such a
motion. The claim by the defense attorneys and the accused that all of the evidence should be dismissed as
inadmissible do not have a clearly formulated basis (the evidence is improper, was obtained in violation of the
procedures established by the Criminal Procedure Code, was obtained from an unlawful source, was obtained
by an improper subject, etc.).
In light of the foregoing, the court finds that no violations of the Criminal Procedure Code of Ukraine were
committed during the pre-trial investigation in this instance.
In accordance with Article 22 of the Criminal Procedure Code of Ukraine, the court has created all the conditions
for realizing the principle of adversarial proceedings, which requires the independent assertion by both the
prosecution and the defense of their legal positions, rights, freedoms and legitimate interests in the manners
provided for by the Criminal Procedure Code of Ukraine, and equal rights to gather and submit items, documents,
and other evidence to the court.
The argument of the accused and their defense attorneys as to the invalidity of the testimony by
PERSON_26, PERSON_42, and PERSON_43 due to the existence of certain inconsistencies in their statements,
which they gave during the pre-trial investigation and in court, is untenable, as these inconsistencies are due to
the passage of a significant amount of time since the events in question, as a result of which a person might not
remember certain details.
The lack of information about the official employment of witnesses PERSON_42, PERSON_43 at the kiosk
belonging to sole proprietor PERSON_50 and located in the underpass of Imeni O.S. Maselskoho metro station,
in the opinion of the court, does not constitute grounds to doubt their testimony, since these witnesses were
warned about their potential criminal liability and were sworn in by the court, and the court found no reasons
why they would give false testimony against the accused.
As for the defense’s argument regarding the bias of witness PERSON_26, who, in the defense’s opinion, should
be testifying as a victim, since he was wounded, this fact has not been documented, rendering these arguments
untenable.
The positions of the accused PERSON_6, PERSON_5, PERSON_4 regarding the non-admission of their guilt
are unsubstantiated, not supported by any proper and admissible evidence in the sense of Article 84 of the
Criminal Procedure Code of Ukraine, and are refuted by the above information and the facts established during
the trial. The court is of the opinion that the accused’s assertions regarding their non-involvement in committing
the crimes of which they stand accused are motivated by a desire to avoid in any way possible the criminal
liability for what they have done. The court deems the evidence that was examined at the hearing to be proper
and admissible, as it meets the requires of the Criminal Procedure Code of Ukraine, and the court did not find,
nor did the parties prove, that it violates the requirements of Articles 87 or 101-102 of the Criminal Procedure
Code of Ukraine.
No other evidence was presented during the trial by the parties to the criminal proceeding, including the
defense, which was free to exercise its rights within the scope and in the manner provided by the Criminal
Procedure Code of Ukraine, taking into account that the court, while maintaining its objectivity and impartiality
in the course of hearing this criminal proceeding, created the necessary conditions for the parties to exercise their
procedural rights and perform their procedural duties. Moreover, the court created the appropriate conditions for
the accused and their defense attorneys to submit evidence; in particular, from February 2019 onward they were
given the opportunity to request this, but the accused, abusing their procedural rights
- 477 -
requirements person's fmds accused's for finding him guilty.
person's United Kingdom).
"infringement" impose an "individual and excessive burden."
3322
(Changing defense attorneys, filing unsubstantiated request for the recusal of judges and the prosecutor,
and repeatedly filing motions on the same grounds), did not exercise their rights according to the
of the Criminal Procedure Code of Ukraine.
Article 91 of the Criminal Procedure Code of Ukraine defines the facts that must be proven in a criminal
trial, specifically: the occurrence of a criminal offence (time, place, method and other circumstances of the
commission of the criminal offence), the accused person’s guilt in committing the criminal offence, the
form of guilt, and the motive and purpose of committing the criminal offense. Proof consists in gathering,
verifying and evaluating evidence in order to establish facts that have a bearing on the criminal proceedings.
The evidence examined and verified by the court in this case, which supports the guilt of PERSON_4,
PERSON_6 and PERSON_5 of the charges brought against them, is verified and consistent, and the court
has no doubts as to its relevance and admissibility.
According to Article 86 of the Criminal Procedure Code of Ukraine, evidence is admissible if it is obtained
in accordance with the procedures provided by said Code. Article 87 of the Criminal Procedure Code of
Ukraine provides an exhaustive list of the ground on which evidence may be found inadmissible. The court
has no doubt as to the accuracy and objectivity of the aforementioned evidence, as it was obtained without
violating the law, is internally consistent, relevant, admissible, and sufficient, as a result of which the court
deems it possible to accept that evidence. In accordance with the requirements of Articles 85 and 86 of the
Criminal Procedure Code of Ukraine, the court finds the directly examined evidence to be proper,
admissible, reliable, and sufficient in its totality for a proper legal assessment of the accused’s actions and
The court recognizes the examined physical evidence to be proper and admissible, since it meets the
requires of the Criminal Procedure Code of Ukraine, and the court did not find, nor did the parties prove,
and violations of the requirements of Articles 87 or 101-102 of the Criminal Procedure Code of Ukraine.
This physical evidence was obtained in accordance with the proper procedures, i.e., according to the legal
requirements for conducting the relevant procedural step and recording its progress and results.
According to Article 17 of the Criminal Procedure Code of Ukraine, no one is obligated to prove his
innocence of a criminal offence and may be acquitted if the prosecution fails to prove the person’s guilt
beyond a reasonable doubt.
According to paragraph 43 of the judgment of the European Court of Human Rights dated February 14,
2008, in the case of Kobets v. Ukraine, proof may follow from the coexistence of sufficiently strong, clear
and concordant inferences or of similar unrebutted presumptions of fact, in the absence of which it cannot
be asserted that the guilt of the accused has been proven beyond a reasonable doubt. A reasonable doubt is
one based on specific facts and admissible information, accepted as evidence, or the absence of such
information, and one that would compel a person to refrain from making a decision on matters of the most
importance to him.
According to the precedents of the European Court of Human Rights, the criterion for proving a person
guilty of the criminal offense of which he stands accused is that the prosecutor himself must prove the guilt
of the accused beyond a reasonable doubt. In issuing its judgment, the court must be convinced beyond a
reasonable doubt that each of the material elements of the alleged criminal offense has been proven (J.
Murray v. The The court takes into account the judgment of the European Court of Human Rights in the case of Scoppola
v. Italy dated 09/17/2009 (application No. 10249/03), which states that a constituent element of the principle
of rule of law is the expectation that the court will apply to each criminal the penalty that the legislature
deems proportionate.
In the case of Izmailov v. Russia (paragraph 38 of the judgment dated 10/16/2008), the European Court of
Human Rights established that “in order to be considered proportionate, the interference should correspond
to the gravity of the infringement” and should not
“burden.”
- 478 -
"individual's
`legality' arbitrary." person's state's "Everyone's law." "law."
Protest." 6'5'4'PERSON6
3333
In its judgment dated June 09, 2005 in the case of Baklanov v. Russia and its judgment dated March 24, 2005 in
the case of Frizen v. Russia, the European Court of Human Rights stated that “achieving a fair balance between
the demands of the general interests of the community and the requirements of the protection of the individual’s
fundamental rights only then becomes significant if it is found that the principle of ‘legality’ was observed during
the relevant interference and it was not arbitrary.” In order for an interference to be considered proportionate, it
must correspond to the gravity of the infringement and not impose an individual and excessive burden on a
person, the European Court stated in its judgment of October 16, 2008 in the case of Izmailov v. Russia.
The Constitution of Ukraine states that a person, his life and health, honor and dignity, inviolability and security
are recognized in Ukraine as the highest social value (Article 3). In addition, Article 27 of the Basic Law of the
state guarantees a person’s inalienable right to life, and it is the state’s responsibility to protect this right. These
provisions of the Constitution of Ukraine are rooted in provisions of international law, particularly Article 2(1)
of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), which states:
“Everyone’s right to life shall be protected by law.” A similar provision is contained in Article 6(1) of the
International Covenant on Civil and Political Rights (1966): “Every human being has the inherent right to life.
This right shall be protected by law.”
At the hearing, the accused claimed that during the pre-trial investigation they were subjected to
improper methods of conducting a pre-trial investigation.
However, investigator K.O. Alekhina of the First Investigative Division of the Investigations
Department of the Territorial Directorate of the State Bureau of Investigations, located in the city of Poltava,
issued an order dated 12/26/2019 terminating the criminal proceeding that had been entered into the Unified
Register of Pre-Trial Investigations under No. 42015220000000899 dated October 22, 2015, over alleged
criminal offenses provided for by Article 365(1), Article 365(2), and Article 374(2) of the Criminal Code of
Ukraine, on the basis of Article 284(1)(2) of the Criminal Procedure Code of Ukraine on the grounds that the
actions by officers of the Kharkiv Regional Directorate of the SBU and the Kharkiv Regional Prosecutor's Office
lacked the objective side of the criminal offenses provided for by Article 365(1), Article 365(2) and Article
374(2) of the Criminal Code of Ukraine, i.e., lacked elements of these criminal offenses.
In addition, the judicial panel scheduled a forensic psychological examination of the accused PERSON_4,
PERSON_5, and PERSON_6.
According to forensic psychological expert report No. 1632 dated 02/20/2017, in the communicative
behavior of PERSON_6 during the video-recorded investigative experiment of 02/27/2015 with his participation
as a suspect, there are psychological features inherent to his independent reproduction of the events surrounding
the commission of the terrorist act that took place on Marshal Zhukov Avenue in Kharkiv on 02/22/2015 during
the peaceful rally/march of citizens "Commemorating the Anniversary of Those Who Died During the Peaceful
Euromaidan Protest.” In the video recording of the investigative experiment of 02/27/2015, conducted with the
participation of PERSON_6 as a suspect, there are no signs of psychological pressure being exerted on the latter
by the persons who took part in this investigative action. In the video recording of the investigative experiment
dated 02/27/2015, conducted with the participation of PERSON_6 as a suspect, there are no signs of
psychological influence on the latter. The psychological aspects of the video-recorded investigative experiment
of 02/27/2015, with the participation of PERSON_6 as a suspect, are characterized by signs of communicative
interaction, which is consistent with the individual psychological features of the "closed" communicative
position of PERSON_6. In the course of the investigative experiment, PERSON_6was asked predominantly
open-ended questions formulated according to a story comprised of plot fragments, outlining their content
direction and directing the construction of the basic algorithms of the latter's messages according to the specific
nature of the investigative action; alternative questions constituted clarifications of the information provided by
the suspect; and suggestive questions made up a tiny share of the total number of formulated questions and did
not affect the course of reconstructive activity of PERSON_6. In the process of PERSON_6’s recreation of
events related to his alleged crimes, during the aforementioned video-recorded investigative action, the latter's
communicative activity is characterized by a difference in behavioral manifestations. PERSON_6 reconstructs
in a substantially expansive and nonverbally expressive manner the routes, visual signs (landmarks) of the area,
specifics of PERSON_5’s and PERSON_4’s actions during the period relevant to laying and activating the
explosive device; the circumstances surrounding the movement of the column; and the situation and
circumstances surrounding their departure from the site of the explosion. In the instances where PERSON_6
reconstructs his own actions in the period of time related to laying and activating the explosive device, and in
- 479 -
suspect's
6'Protest." latter's
PERSON 5'6'4'5'5'Protest." 4'3344
the instance where he reconstructs his own actions associated with throwing out the mobile phone, the suspect’s
communicative activity shows a pronounced decrease in detail, substantial convolution of judgments, a decrease
in the illustrative nature of facial and pantomime manifestations, and a reference to his lack of visual perception
of the explosive device. Taking into account these differences in PERSON_6’s verbal and nonverbal production,
his communicative behavior in the course of this investigative experiment shows indications of willful
adjustment of his reconstructive activity and orientational-adjustive communicative behavior, which is a kind of
independent activity (case file v. 7, pp. 113-136).
According to forensic psychological expert report No. 1794/224 dated 02/22/2017, in the
communicative behavior of PERSON_5 during the video-recorded investigative experiment of 02/27/2015 with
his participation as a suspect, there are psychological features inherent to his independent reproduction of the
events surrounding the commission of the terrorist act that took place on Marshal Zhukov Avenue in Kharkiv
on 02/22/2015 during the peaceful rally/march of citizens "Commemorating the Anniversary of Those Who Died
During the Peaceful Euromaidan Protest.” In the video recording of the investigative experiment of 02/27/2015,
conducted with the participation of PERSON_5 as a suspect, there are no signs of psychological pressure being
exerted on the latter by the persons who took part in this investigative action. In the video recording of the
investigative experiment dated 02/27/2015, conducted with the participation of PERSON_5 as a suspect, there
are no signs of psychological influence on the latter. The psychological aspects of the video-recorded
investigative experiment of 02/27/2015, with the participation of PERSON_5 as a suspect, are characterized by
signs of communicative interaction, which is consistent with the individual psychological features of the latter’s
active communicative position. In the course of the investigative experiment, PERSON_5was asked
predominantly open-ended questions formulated according to a story comprised of plot fragments, outlining
their content direction and directing the construction of the basic algorithms of the suspect's messages according
to the specific nature of the investigative action; alternative questions constituted clarifications of the information
provided by the suspect; and there were no suggestive questions. In the process of PERSON_5’s recreation of
events related to his alleged crimes, during the aforementioned video-recorded investigative action, the latter's
communicative activity is characterized by a richness of verbal production with specific details, consistency,
and active behavioral (nonverbal) manifestations; he reconstructs in a substantially expansive and nonverbally
expressive manner situation and circumstances related to obtaining the explosive device; reconstructs routes in
detail; defines visual signs (landmarks) and features of reconstructed areas; provides a detailed description of
PERSON_6’s and PERSON_4’s specific actions during the period related to laying and activating the explosive
device; provides a detailed description of his own actions during the period related to installing and activating
the explosive device; reconstructs in detail the situation and circumstances surrounding his departure from the
site of the explosion. PERSON_5’s nonverbal means of communicative activity is not typical for manifestations
of forced motivation to communicate. PERSON_5’s verbal and nonverbal production throughout the
investigative experiment is expressed by signs of psychological consistency (congruence) and independent
reproduction of events during the investigative experiment (case file v. 7, pp. 139-169).
According to forensic psychological expert report No. 1793/223 dated 02/21/2017, throughout the vast
majority of the investigative activity, in the communicative behavior of PERSON_4 during the video-recorded
investigative experiment of 02/27/2015, with his participation as a suspect, there are psychological features
inherent to his independent reproduction of the events surrounding the commission of the terrorist act that took
place on Marshal Zhukov Avenue in Kharkiv on 02/22/2015 during the peaceful rally/march of citizens
"Commemorating the Anniversary of Those Who Died During the Peaceful Euromaidan Protest.” The exception
is a single instance where PERSON_4 reproduces the object (trash can) where he threw out his Samsung mobile
phone. In this instance, PERSON_4’s identification of this place is not
- 480 -
mobile phone. In this 4'4'4'5'4'6'4'[...]
3355
independent. In the video recording of the investigative experiment of 02/27/2015, conducted with the
participation of PERSON_5 as a suspect, there are no signs of psychological pressure being exerted on the
latter by the persons who took part in this investigative action, for the most part. The exception is a single
instance where PERSON_4 reproduces an object (trash can) as the place where he threw out his Samsung
instance, PERSON_4’s identification of this place is formulated under the influence
of a suggestive question. In most of the video-recorded investigative experiment dated 02/27/2015,
conducted with the participation of PERSON_5 as a suspect, there are no signs of psychological influence
on the latter. The exception is a single instance where PERSON_4 reproduces an object (trash can) as the
place where he threw out his Samsung mobile phone. In this instance, PERSON_4’s identification of this
place is formulated under the influence of a suggestive question, and is therefore not independent. The
psychological aspects of the video-recorded investigative experiment of 02/27/2015, with the participation
of PERSON_5 as a suspect, are characterized by signs of communicative interaction, which is consistent
with the individual psychological features of the PERSON_4’s restrained communicative activity. In the
course of the investigative experiment, the suspect was asked predominantly open-ended questions
formulated according to a story comprised of plot fragments, outlining their content direction and directing
the construction of the basic algorithms of the suspect's messages according to the specific nature of the
investigative action; alternative questions constituted clarifications of the information provided by the
suspect; and suggestive questions made up a tiny share of the total number of formulated questions and did
not affect the course of reconstructive activity of PERSON_4. In the process of PERSON_5’s recreation of
events related to his alleged crimes, during the aforementioned video-recorded investigative action, the
latter's communicative activity is characterized by a well-established volitional control of his own
communicative behavior, active attention, emotionally restrained involvement in the process of his own
reproduction, proactive dissemination of verbal messages with specific details, clarifications, references to
direct perceptions, indications of his own awareness of the events being reproduced. PERSON_4’s
nonverbal reactions during the reconstruction of events perform a semantic function and are congruent with
his verbal message. In the instances where he reconstructs the situation and circumstances of events related
to his own actions when sending the SMS message to PERSON_6’s mobile phone, especially understanding
his own role and the results of these actions, and disassembling and throwing out the mobile phone,
PERSON_4’s communicative activity shows signs of orientation-adjusting communicative behavior, which
a type of independent activity (case file v. 7, pp. 172-193).
[...]
- 481 -
After defendants,' of guilt in committing the criminal 3366
analyzing the evidence presented in this criminal case and evaluating them in aggregate, the court
finds unfounded defendants,’ PERSON_4, PERSON_5, PERSON_6, allegations about their non-admission
offense incriminated, as they are refuted by the evidence stated in the
sentence, which are objectively consistent with circumstances of the case.
The court, taking into account the above evidence, which was provided to the court and examined during
the proceedings, considers the arguments of the defendants' innocence unfounded. Arguments of the
accused PERSON_4, PERSON_5, PERSON_6 regarding non-involvement in the crime incriminated, the
court regards as a way of defense and an attempt to avoid criminal responsibility for a serious and
especially grave crimes, because their arguments are refuted by the above evidence, reviewed
during the trial.
- 482 -
fmd 3377
Court costs shall be collected from the accused.
In light of the foregoing and pursuant to Articles 349, 369-371, 373, 374, 394, and 395 of the
Criminal Procedure Code of Ukraine, the judicial panel
HEREBY RULES:
To find PERSON_5 guilty of the criminal offenses provided for by Article 263(1) and 258(3) of the
Criminal Code of Ukraine, and to sentence him:
- to 7 (seven) years in prison under Article 263(1) of the Criminal Code of Ukraine;
- 483 -
crimes in the form of life
imprisonment.
fmd crimes in the form of life
imprisonment.
To fmd PERSON_4 guilty of the criminal offenses provided for by Article verdict's - PERSON_5, - PERSON_6, 3388
- to life in prison with confiscation of all assets that are his personal property, under Article 258(3) of the
Criminal Code of Ukraine.
Pursuant to Article 70(1) of the Criminal Code of Ukraine, by way of absorbing a less severe punishment
into a more severe one, to hand PERSON_5 a final sentence for the totality of his in prison with the confiscation of all assets that are his personal property.
According to Article 72(5) of the Criminal Code of Ukraine (as amended by Law of Ukraine No. 838-VIII
of 11/26/2015), time spent in pretrial detention from 02/26/2015 to 12/28/2019 inclusive shall be counted
as time served at the ratio of one day of pretrial detention for two days of To find PERSON_6 guilty of the criminal offenses provided for by Article 263(1), Article 27(5) and
258(3) of the Criminal Code of Ukraine, and to sentence him:
- to 7 (seven) years in prison under Article 263(1) of the Criminal Code of Ukraine;
- to life in prison with confiscation of all assets that are his personal property, under Article 27(5) and
Article 258(3) of the Criminal Code of Ukraine.
Pursuant to Article 70(1) of the Criminal Code of Ukraine, by way of absorbing a less severe punishment
into a more severe one, to hand PERSON_6 a final sentence for the totality of his in prison with the confiscation of all assets that are his personal property.
According to Article 72(5) of the Criminal Code of Ukraine (as amended by Law of Ukraine No. 838-VIII
of 11/26/2015), time spent in pretrial detention from 02/26/2015 to 12/28/2019 inclusive shall be counted
as time served at the ratio of one day of pretrial detention for two days of find 263(1), Article 27(5) and
258(3) of the Criminal Code of Ukraine, and to sentence him:
- to 7 (seven) years in prison under Article 263(1) of the Criminal Code of Ukraine;
- to life in prison with confiscation of all assets that are his personal property, under Article 27(5) and
Article 258(3) of the Criminal Code of Ukraine.
Pursuant to Article 70(1) of the Criminal Code of Ukraine, by way of absorbing a less severe punishment
into a more severe one, to hand PERSON_4 a final sentence for the totality of his crimes in the form of life
in prison with the confiscation of all assets that are his personal property.
According to Article 72(5) of the Criminal Code of Ukraine (as amended by Law of Ukraine No. 838-VIII
of 11/26/2015), time spent in pretrial detention from 02/26/2015 to 12/28/2019 inclusive shall be counted
as time served at the ratio of one day of pretrial detention for two days of imprisonment.
Pending the verdict’s entry into legal force, to replace the pre-trial restriction imposed on:
INFORMATION_6, place of residence: ADDRESS_3;
INFORMATION_7, place of residence: ADDRESS_5;
- PERSON_4, INFORMATION_8, place of residence: ADDRESS_2,
with release on their own recognizance, effective immediately.
- 484 -
To inform PERSONJ, convicts' — - ammunition, the RGD-5 of the Kharkiv Regional
— — owners;
PERSON - file — PERSON — PERSON5 — the - — PERSON6
6'— — — 3399
PERSON_5, PERSON_6, and PERSON_4 that they must:
- appear before the prosecutor and the court upon the first summons;
- notify the prosecutor and the court of any change in their place of residence.
To task Prosecutor of the Kharkiv Regional Prosecutor's Office V.L. PERSON_54 with monitoring the
convicts’ compliance with the terms of their release on their own recognizance.
To take the following steps in relation to the physical evidence once this verdict enters into legal force:
- fragments of polymer material, soil samples, remnants from the explosion, shrapnel from the bodies of
the victims, and biological samples of the convicts that are being stored in the physical evidence storage
rooms of the Kharkiv Regional Directorate of the SBU (2 Myronosytska St., Kharkiv) – destroy
grenade with a UZRGM fuse, shrapnel, fragments of explosive devices and
substances that are being stored at the warehouse of the Anti-Terrorist Operation Directorate of the SBU at 2 Myronosytska St., Kharkiv – destroy
- personal belongings that are now in the possession of the victims – deem them returned to their rightful
- personal belongings of the victims and the service certificate of PERSON_10, which are being stored in
the physical evidence storage rooms of the Kharkiv Regional Directorate of the SBU (2 Myronosytska St.,
Kharkiv) - destroy
- the GAZ 330214 automobile, state license plate NUMBER_40, which is in the possession of PERSON_32
– deem it returned to its rightful owner;
- the documents of officers of the Ministry of Internal Affairs of Ukraine that are held in the criminal case
– destroy
- discs and video materials, compact discs with the information of mobile phone operators, and the flash
drive of PERSON_5, which are held in the criminal case file – continue to keep them there;
- the Ford Sierra automobile, state license plate number NUMBER_4, belonging to PERSON_55, which
was used by PERSON_5 and is now in the garage of the SBU Directorate at ADDRESS_10 – return to
owner; computer belonging to PERSON_5, which is being stored in the physical evidence storage room of
Kharkiv Regional Directorate of the SBU – return to state use by way of confiscation of property
belonging to PERSON_5
- the Opel Omega automobile, state registration number NUMBER_7, belonging to PERSON_6, which is
in the garage of the SBU Directorate at ADDRESS_10 – return to state use by way of confiscation of
property belonging to PERSON_6
- six mobile phones (three Samsungs, two Nokias, one Maxvi) seized from PERSON_5, PERSON_6, and
PERSON_4 and PERSON_6’s laptop computer, seized from PERSON_4, which are being stored in the
physical evidence storage room of the Kharkiv Regional Directorate of the SBU – return to state use by
way of confiscation of property belonging to the convicted persons;
- other property seized during the search of PERSON_4 that is held in the criminal case file – continue to
keep it there;
- black Transcend 2GB flash drive that is being stored in the physical evidence storage room of the Kharkiv
Regional Directorate of the SBU – destroy.
- 485 -
PERSON 1 4, PERSON PERSON PERSON PERSONJ, PERSON PERSON PERSON PERSON PERSON _PERSON PERSON 4400
To deny the petition of PERSON_6 to lift the attachment on his land.
To grant in full the civil claims of PERSON_24, PERSON_21, PERSON_14, PERSON_23, PERSON_18,
PERSON_2, and PERSON_1.
To collect jointly from PERSON_5, PERSON_6, and PERSON_4, in favor of the state, the costs associated
with conducting the forensic expert examinations, in the amount of UAH 95,338.62.
To collect UAH 100,000.00 in moral damages jointly from PERSON_5, PERSON_6, and PERSON_4 in
favor of PERSON_24.
To collect UAH 300,000.00 in moral damages jointly from PERSON_5, PERSON_6, and PERSON_4 in
favor of PERSON_21.
To collect UAH 200,000.00 in moral damages jointly from PERSON_5, PERSON_6, and PERSON_4 in
favor of PERSON_14.
To collect UAH 23,300,000.00 in moral damages jointly from PERSON_5, PERSON_6, and PERSON_4
in favor of PERSON_23.
To collect UAH 18,200,000.00 in moral damages jointly from PERSON_5, PERSON_6, and PERSON_4
in favor of PERSON_18.
To collect UAH 2,600,000.00 in moral damages jointly from PERSON_5, PERSON_6, and PERSON_4 in
favor of PERSON_2.
To collect UAH 1,2500,000.00 [sic] in moral damages and UAH 120,352.80 in legal costs jointly from
PERSON_5, PERSON_6, and PERSON_4 in favor of PERSON_1.
This verdict may be appealed to the Kharkiv Court of Appeal by filing an appeal via the Frunzensky District
Court of Kharkiv within 30 days from the date of its publication.
The verdict shall enter into legal force upon the expiry of the appeal period, if no appeal is filed. If an appeal
is filed, this verdict, unless it is overturned, shall enter into legal force once the court of appeal issues its
judgment.
To deliver a copy of the verdict to the accused persons and the prosecutor as soon as it is published.
Pursuant to Article 376(3) of the Criminal Procedure Code of Ukraine, the court hereby advises the accused,
the defense attorneys, and the victims of their right to file a petition for clemency and their right to review
the log of the court session and submit written comments on it.
Presiding Judge O.V. Horpynych
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