Ukraine had never had similar cases; neither did it have specialized courts for handling them. The military courts were abolished in Ukraine in 2010. For this reason, the alleged war crimes committed by Russian military on the territory of Ukraine are going to be considered by judges competent for traffic accidents, domestic homicides, and thefts. These judges, just like other Ukrainian citizens, have since the Russian military invasion on February 24 heard explosions and hid in bomb shelters during air-raids. Many court buildings in Ukraine were damaged by the war, and many court staff joined the Army and Territorial Defence. Therefore, it is obvious that even judges cannot remain apart when war has come to their country.
The first to appear in the dock was a 21-year-old Russian national, Vadim Shishimarin. He and three other comrades surrendered in the Sumy region, close to the Russian border in north-eastern Ukraine, after their military vehicle column was defeated by the Armed Forces of Ukraine just four days after the start of the invasion. Shishimarin admitted that he shot dead a civilian, who was talking on a mobile phone while pushing his bicycle on the side of the road. The young man says that he was ordered to do so by two senior military officers, who believed that the civilian was passing information about their whereabouts to the Ukrainian army. One of them, whose name he did not know, began to threaten him. During the court hearings last week, the defendant's attorney said that Shishimarin fired under pressure, not even hoping to hit the target, that he obeyed the orders of senior soldiers, and had no intention to kill his victim.
The Russian serviceman fired through a car window. The man was shot in the head and died.
Intense spotlight and rare speed
The first court hearing took place on Friday, May 13, in Solomianskyi District Court in Kyiv, under intense media spotlight. More than 150 journalists registered with the Court that day. The Court was unprepared for such an influx of journalists.
Most Ukrainian courts are not adapted to public trials. Only a few dozen people, not to mention hundreds of observers, can sit freely in the courtroom. Very few court buildings in Ukraine have been designed as court houses from the beginning. Most often, they had a different purpose. They were kindergartens, clinics, banks. Accordingly, the majority of the courts are small office-type ones, that cannot accommodate large crowds.
Solomianskyi District Court in Kyiv tried to find a compromise. Some cameramen and photographers were allowed to enter the courtroom, whereas the rest of the media could watch a video broadcast in two neighbouring offices. The journalists were asked to rotate during the breaks and change places with those who had attended the first part of the hearing, but the plan was not very successful. The result was jostling, insults, and discontent in the corridors of the court. In addition, the video broadcast did not provide a correct retransmission of the participant’s words, so the hearing was finally held in another courtroom with a relatively larger room.
After that, the trial accelerated. On Wednesday May 18, in one hearing, the victim, the accused, two witnesses and all the evidence were examined. For Ukraine this is a rare speed. Judges are usually so busy that they can barely dedicate more than two hours to a case, and the next hearing is scheduled in two months. And when two months have passed, the detainee custody needs to be extended and the court does not have time to do anything else. At the next hearing, there are usually other obstacles, such as witnesses not coming.
In Shishimarin’s case, after two hours the Court paused to rest, and resumed the hearing. If the defence had not asked for time to prepare closing arguments, the hearing would have ended on the same day. It was obvious that the judges had postponed all other cases to examine this one. Under normal circumstances, Shishimarin’s trial could have lasted several years.
A straightforward prosecution case
The Ukrainian Prosecutor's Office said that they could prove the guilt of the Russian soldier even without his confession. The wife of the deceased claims that after hearing the shot, she opened the front door of the house and saw a car on the street, from which window Shishimarin was looking at her with a gun in his hand. Scared, she closed the door, but had enough time to get a good look at the Russian military. Another resident of the village saw a car in the street and the smoke from an assault rifle behind the driver heading towards the victim's house.
Ballistic examination showed that the man was shot with Shishimarin’s rifle.
After the killing of the civilian, the car was ambushed. Three villagers fired at the car with shotguns. That was when one of the Russian servicemen who allegedly ordered Shishimarin to shoot was wounded and died. His body was left on the battlefield, and Ukrainian police later identified him as Ivan Kufakov. During the night the soldiers hid in a pig farm in the village where they met a caretaker, also a civilian, whom they did not harm. On the morning of March 1, the Russians went to the village and surrendered themselves to the Territoral Defence of Ukraine.
Out of four prisoners of war, only Sergeant Shishimarin was accused of “violating the laws and customs of war”. The other two, Warrant Officer Nikolay Makeyev and Lieutenant Aleksandr Kalinin, were sent back to the Russian Federation as part of a prisoners of war exchange on April 13. The third one, Private soldier Ivan Maltisov remained in Ukraine as a witness to confirm the prosecution's version of the shooting.
In their testimony in court, Maltisov and Shishimarin said that the first order to shoot was given by a senior officer, Makeyev. Formally, Shishimarin and Makeyev belonged to different units and, under the usual circumstances, the former was not subordinate to the latter. However, in a combat situation, the soldiers would follow the instructions of the senior officer. Lieutenant Kalinin outranked Makeyev, but he was in the trunk of the car they had stolen in their attempt to escape, and therefore did not control the situation when the civilian was shot.
As Shishimarin did not comply with Makeyev's order, another military man (Kufakov) threatened him. Allegedly, it was the first time that morning they saw Kufakov. Maltisov described him as a 25-30-year-old man from an intelligence unit, explaining that at this age, a Russian soldier usually has the officer’s rank and some service experience. Kufakov was sitting in the front seat near Makeyev, who was driving the car, in a way that the two young men could consider Kufakov and Makeyev as commanders. So the youngest soldiers became the fall guys in this situation.
In a conversation with journalists, the prosecutor did not deny that Maltisov received the status of a witness because he agreed to testify in favour of the prosecution. The two already exchanged Russian military, Makeyev and Kalinin, were interrogated as suspects at the pre-trial stage. What they said seemed to dispel all suspicions. However, there are no records of their interrogations in the case. Other sources at the prosecutor's office unofficially say that Makeyev and Kalinin were exchanged precisely because the Russian side wanted to take away higher-ranking combatants.
A defence on short notice
Justice must be accessible to all. As the soldier did not have money for a lawyer, the state of Ukraine gave the Russian soldier one at its own expense. His lawyer, Viktor Ovsyannikov, was on duty at the Center for Free Legal Aid when he received the request, and accepted it.
Can a fair judgment be made, beyond passions, in times of war? The fact that a Ukrainian attorney is defending a Russian soldier is critically perceived not only by ordinary citizens, but also by professionals in Ukraine. Some attorneys leave comments on social networks, saying that from an ethical point of view they could not defend Shishimarin. Aside of the hearing, a journalist also asked: “Tomorrow, the day after tomorrow we will exchange him for our prisoners of war. Why organize this circus? » Or, « Too bad the death penalty has been abolished », commented another one.
Ovsiannikov draws the court's attention to the fact that Shishimarin acted under pressure from senior officers, and carried out their instructions in a combat situation. The defence lawyer considers it unproven that Shishimarin had intention to kill a civilian. The soldier fired 3-4 shots, and only one bullet hit the man. Therefore, the defence lawyer doubts that the soldier fired with aim. To him, the senior servicemen who were sent to the Russian Federation, are responsible.
Furthermore, if the murdered man was in fact communicating with the Ukrainian forces at that time, his murder by the Russians could not be qualified as a war crime, the lawyer argued. Law enforcement officers confiscated the victim's mobile phone, containing information about the last call, and brought it to court as evidence. The prosecutor briefly said that at the time of his death, the man was communicating with a friend, whose identity has been established. But neither the prosecution, nor the defence launched a challenge in court to confirm or deny the peaceful nature of the conversation.
Yet, any mistakes made by the investigation and the Court could hurt Ukraine's position if the Russians challenge the verdicts in the European Court of Human Rights.
Maximum punishment, but possible exchange
For violation of the laws and customs of war combined with intentional homicide, the Criminal Code of Ukraine allowed judges to sentence the Russian soldier to the maximum of life imprisonment. Prosecutors asked for the maximum possible sentence, even though they acknowledged mitigating circumstances such as sincere repentance and assistance to the investigation.
In the conditions of war when missiles and bombs of the Russian Federation attack civilian objects in Ukraine and people die, this kind of radicalism of prosecutors can be understood. And yesterday, Monday May 23, the judges followed the prosecutors’ request, without taking into account the mitigating circumstances in the scale of the sentence.
The defence lawyer immediately announced his intention to appeal. But Shishimarin probably will not spend his whole life in prison atoning for his guilt. He could still be exchanged, especially since the widow of the deceased has informed the Court she does not object to Shishimarin being handed over in exchange for the release of Mariupol defenders from Azovstal.
This is not exactly the first time this kind of case has taken place in Ukraine. In December 2019, three pro-Russia Ukrainian were sentenced to life imprisonment for a “terrorist attack” that killed several people near the sports complex “Palats Sportu” in Kharkiv during a peaceful rally on the anniversary of the Maïdan Revolution of Dignity. Immediately after the verdict, the Court released them after the Russian Federation agreed to exchange them for captured Ukrainians.
This report is part of a series on war crimes, produced in partnership with Ukrainian journalists. It was originally published on the Sudovyi Reporter website.
