Introduction
During Russia’s full-scale invasion of Ukraine, which began on 24 February 2022, Russian forces occupied a significant portion of four regions of the country — Donetsk, Luhansk, Zaporizhzhia, and Kherson. On 30 September 2022, the Russian authorities held formal referendums in the newly controlled territories, secured the status of the occupied territories as new constituent entities of the Russian Federation (hereinafter — RF), and made the corresponding amendments to the Constitution of Russia. Under international law, these territories continue to be regarded as occupied within the meaning of Art. 42 of the Hague Regulations of 1907, and their annexation is not recognized by the international community (see, for example, United Nations (UN) General Assembly Resolution ES-11/4 and subsequent resolutions). Despite this, as early as autumn 2022, the process of accelerated integration of the occupied territories into the Russian legal system began.
The normative acts adopted, in particular amendments to federal legislation, made it possible, in a simplified procedure, to extend the operation of Russian criminal and criminal-procedural law to these territories, despite the fact that, under Art. 64 of the IV Geneva Convention, an occupying power is obliged, as a rule, to keep in force the existing legislation of the occupied territory and may introduce its own criminal norms only for the limited purposes of ensuring security.
Thus, on 31 July 2023, the President of Russia signed Federal Law No. 395, allowing, in an accelerated and simplified procedure, the absorption and substitution of the norms of the criminal and procedural law of Ukraine, the self-proclaimed Luhansk People’s Republic (LPR) and Donetsk People’s Republic (DPR), by the corresponding norms of Russian legislation in the course of criminal proceedings.
A key feature of this law was the possibility of the retroactive criminalization of a number of acts committed prior to the formal “incorporation” of the territories into the Russian Federation, which contradicts the universal principle of nullum crimen sine lege enshrined in national and international legal mechanisms (in particular, in Art. 15 of the International Covenant on Civil and Political Rights and Art. 7 of the European Convention on Human Rights).
These acts have now come to be recognized as crimes under Russian legislation if they are interpreted as directed against the interests of Russia or formations under its control. This creates a situation of legal conflict in which actions that are lawful under Ukrainian law become criminally punishable in Russia retroactively.
For example, under Federal Law No. 359-FZ, criminal acts committed before 30 September 2022 in the territory of the so-called LPR and DPR, Zaporizhzhia and Kherson regions against the interests of Russia, as well as against the LPR and DPR and against citizens of the LDPR, are recognized as crimes under the Criminal Code (hereinafter — CC) of the Russian Federation, notwithstanding the absence of internationally recognized jurisdiction of the Russian Federation over those territories. At the same time, acts recognized as criminal under Ukrainian legislation, if they were committed in the said territories but in the interests of Russia and the self-proclaimed LPR and DPR, are not recognized as criminal and are not subject to criminal qualification under the CC of the RF.
The aforementioned federal law made it possible to launch a mechanism of fabricating criminal cases (in international practice also described as fabrication of charges and accompanied by arbitrary deprivation of liberty — arbitrary detention) against citizens of Ukraine who ended up in Russian captivity, were detained, or were abducted with the aim of further criminal prosecution in the occupied territories.