Oleksii Plotnikov, PhD (international judiciary)
Russia brought to the European Court of Human Rights an interstate application against Ukraine. Of course, the Association of Reintegration of Crimea, of course could not miss such an extraordinary event. This essay opens a series of publications analyzing the complaint in detail, with special attention to that what concerns Crimea.
So, what has actually happened? On the morning of July 22, the General Prosecutor’s Office of the Russian Federation published a press release , according to which the Russian Federation brought an inter-state application to the European Court of Human Rights. The message and the attached file liststhat, what the Russian public prosecutors believe to be Ukrainian violations of the European Convention, including:
– death of civilians, imprisonment and inhuman treatment of people during the Revolution of Dignity, the Odessa tragedy on May 22014, as well as during the Antiterrorist operation;
– infringement of freedom of speech and harassment of the media, Internet platforms, journalists and individual citizens;
– discrimination against the Russian-speaking population, in particular in education and consumer service systems;
– discrimination against Russian companies and entrepreneurs;
– death of people, harm to health and property as a result of shelling by the Armed Forces of Ukraine of the territory of the Russian Federation;
– deprivation of residents of the uncontrolled territories of Donbass of the opportunity to participate in elections;
– blocking of the North Crimean Canal;
– an attack on diplomatic, consular and other missions of the Russian Federation in Ukraine;
– the crash of the MH17 and the resulting death of her passengers and crew due to Ukraine’s failure to close its airspace;
– refusal to provide the necessary legal assistance to the Russian investigating authorities in the investigation of crimes.
The report of the Russian prosecutor’s office also notes that a request for interim measures under Rule 39 of the Rules of the European Court is attached to the Russian complaint. In particular, Russia requested to immediately, even before the start of the consideration of the case, oblige Ukraine to resume water supplies to Crimea through the North Crimean Canal, as well as to abolish the mandatory use of the Ukrainian language in education and media.
The publication of the press-release was followed by an intrigue lasting one and a half days, during which Strasbourg remained silent regarding the very fact of the application. It looked unusual, because an interstate complaint is an extraordinary event, and the press service of the Court, as a rule, addresses such instances immediately. An even more extraordinary event is the state’s request for the application of interim measures in a dispute with another state. For example, when filed the first interstate application against Russia, the information was published on the day of filing (March 13, 2014) and on the same day the Court decided on interim measures . Armenia filed an inter-state application against Azerbaijan together with a request for the request of interim measures on the evening of September 27, 2020. The Court received it on the morning of September 28, and on the same day decided on interim measures.
In the case of the Russian application, only at the end of the working day of July 23, 2021 a press release appeared on the ECtHR website, in which the Court announced that it decided not to grant interim measures . The Court noted that it does not find the existence of a serious risk of irreparable damage to human rights that would justify application of interim measures. This seems to be the first time in the Court’s history when it refused to apply interim measures in an interstate case. Usually, even where the application might not look very justified (for example, in the complaint of Armenia against Turkey regarding the events in Nagorno-Karabakh ), the Court first applied interim measures and later lifted them if it became apparent that there was no risk of immediate irreparable harm. Of course, this neither means a refusal to consider the complaint in general, nor excludes the possibility of satisfying the Russian claims, but on the evening of Friday, July 23 Ukraine won the first round of the fight.
On the same day, the representative of Ukraine to the ECtHR, Ivan Lishchina, posted on Facebook revealing some secrets surrounding the Russian application. It turned out that the Russian prosecutors filed an interstate one can think of two possible explanations for this strange approach.
The first is that the authors of the application confused the procedure of individual application under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms with the procedure of inter-state application under Article 33. An individual application from a person can indeed be submitted to the Court in any of the languages of the 47 member-states of the Council of Europe. This helps the victims of violations to establish communication with the Court. However, the official languages of the Court are still English and French, and states must in any case communicate with the Court in one of these two languages. It is noteworthy that the powers of representation in the ECtHR were transferred to the Prosecutor General’s Office of the Russian Federation only in June 2021. Previously, the aggressor state was represented in Strasbourg by the Ministry of Justice.
Moreover, as follows from the data of the file attached to the press release published by the Russian prosecutor’s office, this file was prepared on the computer of an employee of the Ministry of Justice of the Russian Federation. The press release was apparently prepared at a time when the complaint itself has been finalized. It follows that the complaint was prepared by the Ministry of Justice of the Russian Federation, and the General Prosecutor’s Office did nothing else but submitted it. It is difficult to assume that the officials of the Russian Ministry of Justice, who have significant experience of cooperation with the European Court, did not know that Russian is not the official language of the Council of Europe. Therefore, one can suggest a second explanation: filing an application in a language, which the Court cannot accept, is a deliberate step.
According to the Rules of the ECtHR, it cannot return an incorrectly filed inter-state application to the applicant state, and must register it. However, according to the same Ivan Lishchina, the Court ordered the Russian Federation to submit a translation of the complaint in English or French. Given its extensive volume, such a transfer will require a certain amount of time, during which no further action on the complaint will take place.
What is most surprising about the Russian application is the very fact of submission. Since the beginning of the hybrid war, Russia paid very little attention to the legal side of the issue, moreover, it demonstratively disregarded international law, preferring brute force, threats and pressure, in particular using the advantages of the position of a permanent member of the UN Security Council. As for the ECtHR, Russia is the only member of the Council of Europe, which established in its constitution, that it may refuse to comply with the decisions of the European Court . And the words here are not at odds with the deed. In March 2021, the Russian Federation refused to comply with the ECHR order under Rule 39 to release Alexey Navalny. On July 14, 2021, Russia refused to comply with the ECHR decision on the recognition of same-sex relationships (Russian officials claimed that such a decision contradicts the traditional institution of marriage, although the decision was not about the obligation to recognize same-sex marriages, but about the state’s obligation to respect the relationship of same-sex couples) . Finally, right on the day of filing a complaint against Ukraine, the Russian Federation extradited Alexey Kudin to Belarus, with complete disregard of the ban on such extradition, which the ECHR imposed under the same Rule 39 of its Rules .
Experts often use the terms “warfare” and “lawfare” to denote the styles of conduct of Russia and Ukraine. In terms of warfare, Russia has an obvious advantage, which Ukraine can partially neutralize only thanks to international support. However, in terms of lawfare, the Russian Federation until recently stood on the defensive, and Ukraine successfully used legal mechanisms to curb the aggressor. One can recall the submission of Ukraine to the International Court of Justice  and the interstate application of Ukraine against the Russian Federation to the European Court of Human Rights [9, 10], as well as the consideration of the Ukrainian situation in the International Criminal Court . So what were the reasons that made Russia launch a so far unsuccessful counterattack in the legal field?
It is hardly possible to agree with the opinion, that the complaint was filed only to make the ECtHR not satisfy it, so that Russia would have an excuse to leave the Council of Europe by loudly slamming the door and accusing the European institutions of bias. Such a prospect cannot be ruled out, because indeed the Russian Foreign Ministry stated in a rather cynical manner that “it expects an impartial and non-politicized attitude of the ECtHR in the Russian complaint, as well as a thorough examination by the Court of the materials and evidence provided by the applicant state” . It seems that the Russian Foreign Ministry understands the terms “impartial” and “non-politicized” only as complete satisfaction of Russian demands.
The statement looks like as if without a reminder from Russian diplomats, the decisions of the ECHR would be biased and politicized, and the study of evidence would be insufficient. In any case, the consideration of an inter-state application will take several years, during which the European Court is very likely to refuse all or most of the Russian claims at the stage of admissibility or on the merits. In addition, by advancing a complaint, Russia will inevitably receive a number of unpleasant conclusions (for example, regarding Ukrainian sovereignty over Crimea). It is difficult to predict what the situation will be on the diplomatic, legal, and military fronts when the ECtHR finally completes its consideration of the Russian application. Therefore, the use of the refusal in Russian demands as a pretext for breaking off relations with Strasbourg may be one of the possibilities, but does not seem to be the main motive.
Can it be assumed, that the Russian leadership finally decided to use such a powerful weapon as an international court against Ukraine? Maybe Russia is really seeking decisions on human rights violations by Ukraine? Perhaps this would be a pleasant bonus for the Russian Federation, however, its conduct when filing a complaint does not fit with such an assumption, in particular, the demonstrative disregard for the official languages of the ECtHR clearly does not bring the moment of a decision in favor of Russia closer. Moreover, some of the Russian claims are obviously meaningless and cannot be considered by the European Court (for example, issues of inviolability of diplomatic missions). However, the Court must carry out their formal examination and examination of evidence, which also postpones the moment of a hypothetical decision in favor of Russia.
Thus, we believe in the third version. The main motive of Russia when filing a claim was the intention to reduce the negative effect from some of the events in the legal field, expected in the near future. Thus, the European Court of Human Rights has already declared partially admissible the interstate complaint of Ukraine against the Russian Federation on violations of human rights in Crimea . This means that this complaint will be considered on the merits and the Court will find violations on the part of the Russian Federation. Also, a Grand Chamber hearing is scheduled for the 24 November 2021 in an inter-state case between the Netherlands and Ukraine on the one side and Russia on the other regarding the downing of the MH17 .
Other proceedings take place in parallel. The criminal court in the Netherlands has completed its examination of the evidence in the criminal case on the downing of the MH17, and will move on to questioning witnesses in September . In the UN International Court of Justice, the Russian Federation continuously fails to submit a counter-memorial explaining its position on discrimination against Ukrainians and Crimean Tatars in the occupied territories, as well as on its sponsoring of terrorism in the destruction of the same MH17. Russia has already requested extension of time limit by six months with reference to the coronavirus pandemic, and now the ICJ has set the deadline for August 9 . The claims of Ukraine have already been recognized by the ICJ as entirely admissible, therefore, only the counter-memorial of Russia is lacking before the consideration on the merits can begin. Also, the Office of the Prosecutor of the International Criminal Court completed a preliminary examination of the situation in Ukraine and concluded that there are grounds for opening an investigation by the Pre-Trial Chamber of the ICC .
These developments in international courts do not look optimistic for Russia. The possible judicial decisions against Russia will have several practical effects. First, they will show the status of Russia as an aggressor state and sponsor of terrorism, responsible for the occupation of the territory of another state, human rights violations and international crimes, not at the level of political statements, but at the level of binding court decisions. Secondly, judicial decisions will entail material claims of the victims. Russia can either pay, admitting its responsibility, or defiantly refuse to pay. However, such a refusal would jeopardize any property of the Russian Federation abroad (except for the property of diplomatic missions), which can be foreclosed. Thirdly, no matter how powerful the Russian propaganda machine is, it will be difficult to explain why no independent court accepts the narratives of the Russian propaganda, and why international courts satisfy Ukrainian claims, while Russia does not even apply to such courts.
Filing an inter-state application with the European Court will not save the Russian case in international courts. However, it is likely to delay the decisions and blur their effects. By filing a huge application, Russia is taking away the time and resources of the European Court, which it has to spend on formal procedural actions. It opens up the possibility for the submission of an unlimited amount of “evidence” that will also distract the Court from the proceedings on the complaints of Ukraine and the Netherlands against Russia. If negative decisions are made against Russia, it will have an opportunity to postpone their implementation with the reference to continuing consideration of its complaint against Ukraine. Finally, the application provides new opportunities for Russian propaganda, including in promotion of the Russian version of the alleged responsibility of Ukraine for the consequences of Russian aggression and the occupation of Crimea and parts of Donetsk and Luhansk Oblasts.
If our assumption is correct, then it should be expected that Russia will try to bring complaints against Ukraine to other courts. After all, legal spam is a long-standing and well-known defense tactic in bad cases. The Russian Ministry of Justice and the General Prosecutor’s Office did not come up with anything new here, but only brought the abuse of procedural rights to the international level. National courts have certain tools to counter such abuses. International courts, unfortunately, are little protected from them, because their creators postulated the good faith of states in international relations. However, the very fact of abuse of rights illustrates the weakness of the Russian position. In such a situation, Ukraine must do everything possible to help international courts overcome the difficulties posed by Russia and make truly fair and impartial decisions.