Oleksii Plotnikov, PhD, International Judiciary
Any conflict has an end, and then the question of post-conflict reconstruction arises. Perhaps the most important thing is the restoration of justice, without which peace may remain nothing but a truce. The concept known as transitional justice is used to overcome the consequences of armed conflicts, bring perpetrators of human rights violations to justice, restore the rights of victims, and ensure non-repetition of the crimes of the past. The “ARC” has already written about it   and will do it more, as the transitional justice has already become an effective solution that has been used in dozens of countries around the world to heal the trauma of the past and build the future.
As a rule, the affected societies begin their transitional justice efforts years after the end of the conflict. Sometimes it takes decades for the society to be able to objectively look into its own troubled past. For example, only the state of Maryland (USA) has created a special commission to establish the truth about the lynching courts. In the countries of the former Yugoslavia (Bosnia and Herzegovina, Croatia, Kosovo), the work on transitional justice began years after the end of the conflicts and only under pressure of the international community.
Ukraine is a positive exception to this rule. Ukrainian experts began working on the topic of transitional justice almost immediately after the outbreak of the conflict in 2014. The Ukrainian government has been open to the idea of transitional justice, so the country could independently and systematically develop legislation on transitional justice for a conflict that has not yet ended.
In early 2021, the Ministry of Reintegration of the Temporarily Occupied Territories presented the first version of the draft law “On the Principles of State Policy of the Transition Period” and invited experts and the public to submit proposals . Hundreds of organizations and individuals, including the “ARC”, provided their comments. Therefore, the second version of the draft, which was ultimately submitted to the Verkhovna Rada , was significantly improved and constituted a solid draft law on the foundations of transitional justice, that cound become a basis for further legislative developments.
It is also encouraging that the draft law is being developed without haste and taking into account the opinion of Ukraine’s international partners. One of these is the Council of Europe, within which the European Commission for Democracy through Law (Venice Commission) operates. The task of the Commission is to consider and give opinions on draft laws in terms of their compliance with European standards and values. The project was sent to the Commission at the same time as the presentation to the Verkhovna Rada. On October 18, the Commission published its opinion .
It appreciates the efforts of Ukraine towards the creation of legislation on transitional justice, but contains a large “homework” to finalize the draft. The Commission’s conclusion repeatedly mentions the Crimean issues, and even without this it would be important for the reintegration of Crimea, because the potential law and potential state policy of the transition period will apply to all temporarily occupied territories. Therefore, let’s take a close look at the conclusions of the European Commission.
The very first paragraphs of the substantive part of the conclusion touch upon the question of the legal status of Crimea. Although the Commission diplomatically notes that “the question of the legal status of the territories concerned is not the subject of the present opinion,” it states that the Council of Europe recognizes the territory of the Autonomous Republic of Crimea and Sevastopol as part of Ukraine and does not recognize any Russia-controlled de facto “authorities” in this territory. The Commission also recalls its own earlier conclusion that the Crimean so called “referendum” did not comply with the Constitution of Ukraine, and the very circumstances of its holding excluded the possibility of compliance with the European standards . Therefore, the Commission actually agreed with the basic premise on which the Ukrainian strategy should be based: it is transitional justice for the occupied territories.
Considering the process of creating the draft law, the Venice Commission indicated that, despite active consultations with the public, the opinion of the persons directly affected by this law was not sufficiently taken into account when developing the draft. This includes the residents of the non-controlled territories. Of course, the possibilities of such consultations are very limited, but the Commission still recommended that the Ukrainian government tries to use all the possibilities to establish the opinion of the residents of the uncontrolled territory on the draft law. It should be added that such a conclusion of the Commission does not mean an obligation to take any position expressed into account. It only concerns the need to look for opportunities to listen to the views of the Ukrainian citizens who find themselves in the occupation.
The Commission criticizes the conceptual approach of the authors of the draft law to the concept of transitional justice and its objectives. The draft concerns, in fact, exclusively the overcoming the consequences of the armed aggression of the Russian Federation, which, in the eyes of European experts, looks like an excessive narrowing of transitional justice. In particular, the Commission indicated that this could lead to an incorrect vision of transitional justice in Ukraine as aimed only at the consequences of violations of Russia and the entities under its control. Therefore, the Commission recalled that transitional justice should be seen as a holistic concept that applies to crimes committed by all parties to the conflict and aims at reconciliation. It can be added that transitional justice should concern not only crimes committed during the conflict, but also other events that led to human rights violations, for example, the destruction of the ecological sphere of Crimea by invaders or discrimination the indigenous peoples.
In the opinion of the Commission, some of the definitions used in the draft law, look problematic. The draft law provides for the right to truth, which is a positive achievement, however, as experts note, the consolidation of predetermined political and even ideological definitions of the conflict contradicts this right, since it can interfere with the establishment of the truth in its entirety. This, in turn, can negatively affect the victims of human rights violations. Such criticism concerns commemoration of the victims of armed aggression. In the opinion of the Commission, all such events should take place in the spirit of dialogue necessary for the reconciliation of all groups of the population involved in the conflict.
The Commission draws attention to a number of narrow legal issues that will actually have a significant impact on the de-occupation process. For example, the draft law contains a provision stating that during de-occupation, all property of the occupying state and its subordinate structures, including the Russian Black Sea Fleet, becomes the property of Ukraine. This provision is clearly problematic from the point of view of international law, since it affects the so-called sovereign property of states, the right to which is not regulated by the internal legislation of victim state, no matter how illegal the actions of the state may be. This is the issue for the treaties and international structures’ decisions.
Also, the experts of the Venice Commission drew attention to the problem of the legality of stay of the nationals of Russia on the deoccupied territory. The existing version of the draft law establishes a six-month period after de-occupation, during which such persons must confirm the legality of their stay in Ukraine. Their overstay would warrant application of the relevan provisions of the Law of Ukraine “On the legal status of foreigners and stateless persons”. In fact, this provision of the draft means that such persons will be forcibly expelled from Ukraine.
The “ARC” once wrote about the problematic nature of such a decision , and now the Venice Commission has come to the same conclusion: the application of the current legislation on foreigners to citizens of the occupying state creates the risk of massive violations of a number of articles of the European Convention on Human Rights. Therefore, no matter how Ukraine treats Russian illegal immigrants in Crimea, this problem requires a quite different approach, which is not yet found in Ukrainian legislation.
Numerous remarks from the Venice Commission concerng the approach used by the authors of the draft law to persecute the perpetrators of human rights violations. According to European experts, the project lacks a focus on protecting the interests of victims, and it is imbalanced, relying on persecution, rather than taking into account the interests of victims and restoration of justice. The commentary emphasizes the need to legislate for the right of victims of human rights violations to compensation. At the same time, the Commission notes the shortcomings of certain provisions of the draft law on criminal penalties. In particular, the project territorially limits the possibilities of applying the relevant criminal penalties, although conflict-related crimes can be committed without reference to the occupied territories. Also, according to the Venice Commission, the draft law lacks guarantees against arbitrary persecution that meet international standards.
The idea of convalidation (recognition of legal force) of transactions effected in the non-controlled territory is viewed by the Venice Commission as generally positive, however, it provides some critical remarks regarding its reflection in the draft law. In particular, it is noted that for the recognition of marriages, births and deaths registered by the de facto “authorities” in the uncontrolled territories, should not take place under the procedure of convalidation, but rather under another administrative procedure established by law, which would not create unnecessary difficulties. In particular, this is necessary for the observance of the internationally recognized rights of the child.
Summing up, the Venice Commission notes that the proposed draft law contains a number of overly general provisions. Specifics are especially lacking in issues related to the Autonomous Republic of Crimea and Sevastopol. In the opinion of the Commission, the correction of this deficiency could be facilitated by consultations with persons who are affected by this draft law, in particular, residents of Crimea and Sevastopol. Also, according to the commission, the draft law should reflect the special constitutional status of the Autonomous Republic of Crimea and the city of Sevastopol.
These conclusions of the Venice Commission are not binding for Ukraine. Some of them point to clear legal problems in the draft law, while others are more theoretical and relate to the conceptual foundations of transitional justice in Ukraine. The Ukrainian legislator should certainly take into account those points of conclusion that relate to the compliance of the draft law with the European Convention on Human Rights, because in them the Commission points out specific risks, such as, for example, the risk of application of the Russian nationals illegally residing on the occupied territories to the European Court of Human Rights.
Other points related to transitional justice, such as the need to consult with residents of the non-controlled territories, or the broader definition of conflict-related events, do not point directly to legal problems. However, taking them into account will allow Ukraine to improve the draft law, and ultimately improve the effectiveness of its transitional justice strategy, including Crimean issues.