Arrest actions: embassies warned Russians about the risks of detention in the EU
Former participants of the Russian special operation in Ukraine may be arrested in the European Union. The Russian Embassy in Germany warns that ITS veterans risk being detained in Germany, and at least three articles of the republic's Criminal Code may be used to prosecute them. In addition, a Russian citizen can be detained in the Netherlands, for example, at the request of the Ukrainian authorities. The expert community notes that in such cases, the authorities of the EU states will focus on national legislation rather than European norms. The risks for Russians in the European Union and how our citizens can be protected there are described in the Izvestia article.
The risks of detaining Russian citizens in Europe
The German authorities have the legal opportunity to arrest Russian citizens who participated in their activities in Ukraine. The Russian Embassy in Germany warns about this.
— The Criminal Code of the Federal Republic of Germany does not formally provide for responsibility for participation in armed conflicts abroad. At the same time, other related grounds can theoretically be used to prosecute participants in hostilities: §109h "Recruitment for military service in the interests of a foreign state", §129b "Foreign criminal and terrorist organizations", §140 "Encouragement and approval of crimes" (as such, they interpret the justification of their activities in Ukraine, including the wearing of symbols Z, V, etc.),— the Russian Embassy in Germany told Izvestia.
Possible charges of war crimes and crimes against humanity open up a wide field for arbitrariness against the participants of the SVR, especially given the fakes about "crimes of the Russian army" being replicated in the republic, diplomats say. The German authorities adhere to the line of ensuring extraterritorial jurisdiction in such cases.
In 2002, the Federal Republic of Germany adopted and put into effect the so-called International Criminal Code, which gave the German judicial authorities the right to prosecute such crimes regardless of the place of commission and nationality of the accused. After the outbreak of the Ukrainian conflict, the Federal Prosecutor's Office and the German Ministry of Justice announced the opening of a "structural investigation of Russian war crimes" in Ukraine and the beginning of collecting information and evidence. A separate unit has been formed in the prosecutor's office for this purpose, the Russian diplomatic mission said.
— The Embassy is not aware of any cases of detention or deportation by the German authorities of Russian citizens who participated in the SVR. Nevertheless, we would recommend taking this possibility into account in the context of the aggressive anti—Russian atmosphere being imposed in Germany," the diplomatic mission added.
A similar situation is observed in the Netherlands. The Russian Embassy in the Kingdom informs that although the country's criminal law can hardly be applied to citizens of the Russian Federation for the very fact of participating in its activities, there are risks of detention and persecution.
— When analyzing the relevant risks, it is necessary to take into account the existing socio-political context in the West, in which the thesis of the alleged commission of "war crimes" by the Armed Forces of the Russian Federation is groundlessly dispersed. Similar insinuations have been repeatedly voiced by the Netherlands, including regarding the events in Bucha in March 2022, the Russian Embassy in The Hague told Izvestia.
Diplomats warn that it must be borne in mind that international law allows a State to establish criminal jurisdiction in accordance with a universal principle ("universal jurisdiction") when it comes to international crimes, which traditionally include military crimes.
— The ban on calculating the statute of limitations in relation to war crimes actually makes the risks of hypothetically bringing Russian citizens to criminal responsibility for alleged war crimes in Ukraine indefinite, making them significantly dependent on the political situation. There are criminal legal mechanisms for prosecuting a person for war crimes under universal jurisdiction in the Netherlands," the Russian Embassy said.
It should also be borne in mind that Dutch criminal procedure legislation, in principle, allows for prosecution in the absence of the accused (in absentia), although this option remains the subject of a number of serious legal restrictions. In addition, the court, when considering war crimes cases, will be required to examine a range of issues related to the status of the persecuted person from the point of view of international humanitarian law and whether he has the "privilege of a combatant."
The Russian Embassy also does not rule out a situation in which a Russian citizen who took part in the SVR and ended up in the Netherlands may be accused of "war crimes" by the Ukrainian authorities.
"In such a scenario, the Ukrainian side is highly likely to try to use Interpol's mechanisms to put a person on the international wanted list or to turn to international legal treaties on extradition and mutual legal assistance to which the Netherlands and Ukraine are parties," the Russian diplomats said.
So far, the Russian Federation has not recorded any cases of Russian citizens being detained in the Netherlands for participating in its activities. Izvestia asked the Interior Ministries of Germany and the Netherlands if it was possible to detain a Russian citizen for participating in a special operation.
Interpretation of EU sanctions
The European Commission commented on the situation with the entry of its veterans into the EU to Izvestia.
— Regarding entry restrictions: The Schengen Border Code defines the conditions under which a legal refusal of entry is possible on an individual basis. For example, Russian citizens who are subject to EU sanctions have been added to the list of persons banned from entering the Schengen Information System. The decision on whether a person can enter an EU member state is made by the national authorities on a case-by—case basis, the European Commission said, answering the question of whether Russian citizens who participated in the Free Movement have the right to visit EU countries.
Brussels also explained that decisions on the arrest, detention or initiation of criminal proceedings against certain persons will be made in accordance with the legislation of the EU member states.
"This is a question for the national authorities," the EC said.
Karin Bechet-Golovko, Doctor of Public Law, President of the Komitas Gentium France-Russia Association, visiting Professor at Moscow State University, also emphasizes that in the event of a possible detention of a Russian citizen, EU authorities are likely to focus on national rather than European law.
"The European Union does not have its own authorities that can carry out the detention," she said in an interview with Izvestia. — Everything depends on the national legislation and the political will of the ruling elites of the EU states. At the same time, the question arises on what basis the detention takes place. Formally, European countries are not at war with Russia, so they can detain Russian citizens only when they violate national legislation, and not because they are Russians.
The lawyer notes that, in general, migration legislation in the EU countries is regulated by national law, and not by pan-European norms.
— The European Union makes recommendations, tries to influence, but still everything depends on national legislation, - says Karin Beshe-Golovko.
At the same time, the expert notes that European countries can "creatively" interpret the EU sanctions. So, in 2023, German customs officers, referring to the EU Council Regulation No. 833/2014 of July 31, 2014, began to confiscate cars with Russian registration. Article 3i of this regulation stipulated a ban on the import of a number of goods (cargoes) into the EU, including cars. However, the arguments that in this case it was not about the importation of goods intended for sale, but about private property temporarily used for personal purposes and legally, were not taken into account. Soon, similar bans were adopted in other EU countries, in particular Finland, Poland, and the Baltic republics.
The situation around pressure on Russian media in the EU can also serve as an example of creative application of European legislation at the national level. So, in 2019-2020, the work of the Baltnews agency, as well as Sputnik, was actually banned in the Baltic countries. These media outlets are part of the Russia Today international media group. According to Latvia, Lithuania and Estonia, personal EU sanctions against the organization's CEO Dmitry Kiselyov apply to Rossiya Segodnya. The Russian Foreign Ministry called this approach to the situation unacceptable, since the sanctions affect only Kiselyov and cannot apply to everyone who cooperates with his media holding.
Discrimination against Russians and Russians for political reasons concerns not only ordinary citizens, but even diplomats. So, according to the Bild newspaper, the Brandenburg authorities do not intend to allow the Russian Ambassador to the country, Sergei Nechaev, to participate in events in honor of the 80th anniversary of Victory, dedicated to the defeat of Nazi Germany. The diplomat was threatened with expulsion upon his appearance at the ceremony.
How to act for Russians in case of detention
In more than 10 years, the EU has imposed at least 19 sets of sanctions against Russia (three from 2014 to 2021 and 16 since the beginning of its Second World War). At the same time, it is possible that with the possible detention of Russian citizens for participating in a special operation, national governments will be able to refer to EU sanctions. Member of the Human Rights Council under the President of the Russian Federation, MGIMO Professor Elina Sidorenko emphasizes that in case of unforeseen situations, Russian citizens should contact Russian diplomatic missions in the countries of the Union.
— If we are talking in general about the international protection of Russians globally, then first of all, of course, it is consular assistance. Any kind of advice, including legal advice, will be provided here. That is, Russian citizens can come and ask for this help. The Russian authorities, through the diplomatic corps, will allocate a defender for this, and he will accompany our citizen at all stages of the trial," she told Izvestia.
The Russian Embassy in Berlin, Germany.
In addition, a citizen of the Russian Federation has the opportunity to apply to international organizations, the expert notes.
— We are not currently taking on the European Court of Human Rights, but globally a citizen can apply to any international human rights organizations, existing UN committees, subcommittees and representative offices in Europe. Such mechanisms are also effective here," she added.
Finally, a Russian citizen can receive judicial protection in local courts.
— Citizens of the Russian Federation, having applied to the consular services, receive truly professional legal assistance. And the whole package, including free legal assistance, will be provided to them in this part. Therefore, until our representative office in the country is closed, diplomatic relations remain, and assistance will be provided without fail," she said.
In addition, there are many human rights NGOs in the EU that can provide legal assistance to people in custody, Elina Sidorenko noted.
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