The sentence of Russian soldier Shishimarin: a juridical analysis

Questo contributo è disponibile anche al seguente link https://www.giornalediplomatico.it/ucraina-condanna-soldato-russo-shishimarin-un-analisi-giuridica.htm

Translated by Alvise Cecchetti

Why was Shishimarin condemned?

During the first days of the Russo-Ukrainian conflict started on the 24th February, Vadim Shishimarin, a 22 years old Russian soldier was employed in the 4^th elite tank division “Kantemirovskaya”. Shishimarin comes from Ust.Ilimsk from Irkutsk oblast, located in Siberian macroregion. According to what declared by his mother to a Russian press agency, Shishimarin moved to Moscow after his graduation, starting to work in a tire shop. Also, according to his mother, he had absolutely no intention to get enlisted in the army, but he did it only to support his family, especially his younger four brothers. On the 28^th of February, while he was fighting in Chupakhivka village in the north-east of Ukraine, he and other comrades stealt a car and subsequently would be attacked, leading them to abandon the car and split the group. After this, Shishimarin and his companions casually encountered a 62 years old man: Oleksandr Shelipov who was riding a bicycle and talking at the phone. Shishimarin would have shot him with a Kalashnikov 3 times, aiming for the head and killing him instantly fearing that he would have revealed their position. Almost immediately after this episode, Ukrainian forces captured Shaishimarin and his fellows. Thre trial against Shishimarin was opened on the 4^th of May and was concluded on the 23^rd of the same month, condemning him to life imprisonment.

Is Ukraine jurisdictionally competent?

The first spontaneous question which may arise from this news is if Ukrainians authorities have or do not have competency on this case. In brief, if it would have been better that a specific tribunal such as the International Penal Court (CPI) was put in charge to judge this case. The answer is the following: given that in penal codes is in force the principle of loci commissi delicti, the competence to judge a case is given to the authority in which the illicit was committed.

Morevoer, international tribunals constituted for this purpose, for example the CPI, operates as complementary institutions, meaning that they are activated only in case the authority of the country where the illicit was committed are not able to prosecute those crimes.

Normative references of the accusation

The trial took place taking in consideration both local and international regulatory sources. Specifically, the accusation, in the person of the national general procurator Iryna Venediktova, moved its accuses on the basis of the Ukrainian Penal Law, which foresees for voluntary homicide a minimum of 10 years imprisonment up to life imprisonment.

At the same time, Ukraine’s court has taken into consideration the IV Genève Convention normative references for civilians’ protection in wartime (to which both Ukraine and Russia are adhering). In particular, references are made to art 3 of the aforementioned Convention disposing the behaviour to follow while treating non-belligerent people: “are and remain prohibited at any time and in any place towards people not taking active role in the conflict:

• Threats to life and violence against body integrity, in particular: assassination, mutilations, cruel treatments, tortures and torment.
• Hostage-taking
• Offence towards personal dignity, especially humiliating and degrading treatment
• Condemns and executions delivered in absence of a fair and internationally recognized tribunals offering legal guarantees recognized as indispensable by civilized people.

Conclusions

The trial has been integrally supported by a solid legal base. Condemns were committed on the base of both local and International law. However, it is noteworthy that the trial, differently from what imaginable has been celebrated in front of an internal court instead of a special tribunal. From a political perspective, this condemn clearly expresses the authorities’ will to pursue all the crimes committed during the conflict.