Oleksii Plotnikov, PhD, international judiciary

On November 24, the representatives of the occupation “authorities” in the Crimea demolished the house of Rustem Useinov, a veteran of the Crimean Tatar movement [1]. Strangely enough, the Crimean law enforcement officers and courts do not pay attention to the colossal volumes of illegal construction in Crimea, as “ARC” pointed in its previous publications [2], [3], but they are so worried about the huts of the indigenous people that these are demolished even before a “decision of the court of appeals” is rendered. This question is, however, rhetorical. Putting the event in a broader context, it turns out that the case of Useinov may indicate a new Russian tactics of oppression of indigenous people, which is applied in other regions of the world. No wonder that Useinov’s lawyer opined that the destruction of the house can be viewed as a violation of fundamental human rights and an international crime [4].

To begin with, the land plot in the village of Morskoye (Qapsihor), on which the Useinov’s house was located, can indeed be formally regarded as squatted, i.e. occupied for the purposes of residential housing construction without due permission. Crimean Tatars, who ho returned to Crimea in the 1990s, never received back their land and houses taken from them or their ancestors during deportation. The issue of restitution of their property has never been resolved, or even officially raised. As a result, the Crimean Tatars had no other choice but to build new houses on their own on vacant lots, which became known as “samozakhvat” (self-occupation). The need to record and legalize such unauthorized buildings in Crimea was discussed, government programs were adopted, but practical steps in this direction were slowly [5].

Little progress in the legalization of the occupation of land plots and newly constructed houses gave to the invaders’ “authorities” another tool to put pressure on the Crimean Tatars. According to a 2011 survey, there are thousands of buildings on unauthorized land plots, including residential buildings and mosques [6]. All of those, as the Useinov case shows, may come under attack from the invaders.

First and foremost, the demolition of a house gravely infringes personal rights of Rustem Useinov. No matter how arbitrarily built his house was, this was a residential building and his only home, where he also kept all his personal belongings. Even Russian constitution, illegally implemented in the Crimea, recognizes that “everyone has the right to a home; no one may be arbitrarily deprived of his or her home; the bodies of state authority and local self-government shall encourage housing construction and create conditions for exercising the right to a home” [7]. A similar norm can be found in the Constitution of Ukraine. The right to housing is one of the basic social standards that, along with the right to adequate food and clothing, ensures the very existence of an individual. It is pointed in the article 25 of the Universal Declaration of Human Rights [8], and article 11 of the International Covenant on Economic, Social and Cultural Rights [9].

The European Court of Human Rights (ECHR) regularly emphasizes that, from the point of view of the Convention, “the concept of “home” within the meaning of Article 8 is not limited to premises which are lawfully occupied or which have been lawfully established. It is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular premises constitutes a “home” which attracts the protection of Article 8 will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place”, as in cases see Sargsyan v. Azerbaijan [10], Yevgeniy Zakharov v. Russia [11].

The fact that housing was built arbitrarily on a site where housing construction is not permitted, does not deprive that housing of legal protection. The right persists and competes with other rights such as property title of the territorial community. In principle, the state has the right to demand the demolition of illegally constructed housing, but such interference has a very strong impact on the private life of an individual, therefore, it requires particularly careful justification and assessment.

The approaches of in two cases are illustrative. In the case “Kaminskas v. Lithuania”, the ECHR stressed that “the Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site”. However, this did not relieve the Lithuanian authorities of the obligation to take measures aimed at improving the applicant`s situation. In particular, the proceedings were interrupted in order for the applicant to legalize his home, and after the decision was taken, he was given a period of more than a year to move out of the housing subject to demolition. Therefore, there was no violation in this case [14].

An opposite example is the case of Yordanova and Others v. Bulgaria. In this case, the Bulgarian authorities issued an order for the demolition of unauthorized residential buildings built by Roma on the outskirts of Sofia. The ECtHR found that the demolition of houses was in accordance with the law and in line with the legitimate aim of restoring property rights violated by unauthorized construction. However, no assessment was made of the impact of the demolition on the applicants, and no additional guarantees existed, in particular, no alternative place of residence was offered to the applicants who did not have any other housing. Therefore, there was a violation of the Convention [15].

It is noteworthy that a similar legal position is inherent in the practice of Russian courts. It is based on two decisions of the Constitutional Court of the Russian Federation rendered in 2012 [12] and 2015 [13], which referred to the same considerations as the Strasbourg Court. According to this court, “the right of ownership of residential premises, which for a citizen and his family members is the only one suitable for permanent residence, cannot be regarded as an exclusively economic right, since it performs a socially significant function and ensures the the realization of a number of fundamental rights and freedoms guaranteed by the Constitution… it is necessary to maintain a balance of rights and legally protected interests of all participants in these relations …, as well as to ensure the possibility of a differentiated approach to assessing emerging life situations in order to avoid unjustified restrictions on constitutional rights and freedoms”.

Nothing like a “differentiated approach”, “maintaining a balance”, ensuring constitutional and convention rights and freedoms, or simply trying to sort out the case, can be seen in the decision of the “Sudak City Court” on the demolition of Rustem Useinov’s house [16]. The court simply fully supported the position of the plaintiff and ordered the demolition of the house at their own expense. The “court decision” does not even indicate that this house is residential.

There can hardly be any doubt that if Useinov’s case reaches the European Court of Human Rights, the latter will recognize the violation of individual rights and will award compensation. However, the case must be viewed in the broader context of the destruction of buildings as an illegal tactic against political opponents that could amount to an international crime. Mass demolitions of residential buildings are used by states in different regions of the world. The Bahamas, Guatemala, Egypt, Israel, India, China, Nigeria, Russia, Turkey, Turkmenistan, Uzbekistan and other states are criticized for such practices [17]. The reasons can be different – from the fight against illegal construction, which is not accompanied by sufficient guarantees against arbitrariness, to the use of the destruction of civilian housing as a tactic in armed conflicts.

In the case of Crimea, it should be borne in mind that this is not just about the destruction of a residential building in violation of the procedure. These actions are committed by the “authorities” of the occupying power in the occupied territory. The situation continues to be subject to international human rights law, which protects the right to private life and property rights, which, however, allows for the limitation of these rights. However, international humanitarian law also applies.  From the point of view of the IHL, a destruction of a residential building in the occupied territory should be considered as an attack against the civilian population.

According to article 53 of the Convention relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV), any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations. [18] This provision applies throughout the entire period of occupation, regardless of whether the destruction of property is related to military operations or generally to military necessity. In 2004, the International Court of Justice issued an advisory opinion on the construction of a wall in the Occupied Palestinian Territory. The court determined that the occupying state was responsible and was obliged to pay compensation for the destruction of houses in the occupied territory for the purpose of construction. [19]

In addition to the responsibility of the state for the destruction of property in the occupied territory, there is individual criminal responsibility for such actions. The unlawful destruction of property in the occupied territory is a war crime both under conventional and customary law. Thus, under the Statute of the International Tribunal for the Former Yugoslavia, it had jurisdiction over gross violations of the 1949 Geneva Conventions, in particular with respect to violations of the laws and customs of war, which meant, inter alia, illegal destruction of property not caused by military necessity [ 20]. The same rule is contained in the Rome Statute of the International Criminal Court [21].

The International Tribunal for the former Yugoslavia has commented in detail on the demolition of residential buildings in the Blaškić judgment. It established that the international crime of destruction of property can be committed during the entire period when such property is under the control of the occupying power (not only during active hostilities). Violation can manifest itself even in a single action, which leads to large-scale destruction [23].

By itself, a momentary act of destruction of property does not amount to the level of severity of an international crime. However, other elements of the case may speak in favor of the assumption, that an international crime did take place. This is, first of all, the systematic nature of the illegal policy of the occupying power, directed against the representatives of the indigenous people. When put into context, the destruction of a house becomes a continuation of a long chain of actions, united by a single intent, and aimed at committing crimes on a larger scale than the destruction of property, including the displacement of the population of the occupied territory, a change in the ethnic composition of the population of the occupied territory.

Ukraine accepts the jurisdiction of the International Criminal Court over the events in Crimea [24], so in theory this case could reach The Hague. However, the first step here should be an investigation by the law enforcement agencies of Ukraine, which can and should conduct an investigation and prosecute persons committing crimes in the occupied territory of Ukraine.

1. https://hromadske.radio/news/2021/11/24/u-seli-mors-ke-znesly-budynok-veterana-kryms-kotatars-koho-rukhu-rustema-useinova

2. https://arc.construction/1036?lang=uk

3. https://arc.construction/4909?lang=uk

4. https://crimeahrg.org/ru/unichtozhenie-doma-veterana-krymskotatarskogo-dvizheniya-rustema-useinova-voennoe-prestuplenie-advokat/?fbclid=IwAR2o3H5hJyLfux-9d-H0XCzNdd9JmZg2Tv6UCW__HQsvrTqZNH4whp7Hvy0

5. https://www.osce.org/files/f/documents/c/c/104418.pdf

6. http://kompravlud.rada.gov.ua/print/72634.html

7. http://www.constitution.ru/10003000/10003000-4.htm

8. https://zakon.rada.gov.ua/laws/show/995_015#Text

9. https://zakon.rada.gov.ua/laws/show/995_042#Text

10. https://hudoc.echr.coe.int/eng?i=001-163042

11. https://hudoc.echr.coe.int/eng?i=001-172073

12. https://rg.ru/2012/05/30/sud-dok.html

13. https://rg.ru/2015/06/16/postanovlenie-dok.html

14. https://hudoc.echr.coe.int/eng?i=001-208663

15. https://hudoc.echr.coe.int/fre?i=001-110449

16. https://sudak–krm.sudrf.ru/modules.php?name=sud_delo&srv_num=1&name_op=doc&number=74119985&delo_id=1540005&new=0&text_number=1

17. https://www.make-the-shift.org/resource-type/forced-evictions/

18. https://zakon.rada.gov.ua/laws/show/995_154#Text

19. https://www.icj-cij.org/public/files/case-related/131/131-20040709-ADV-01-00-EN.pdf

20. https://zakon.rada.gov.ua/rada/show/995_711#Text

21. https://zakon.rada.gov.ua/laws/show/995_588#Text

22. https://www.icty.org/x/cases/blaskic/tjug/en/bla-tj000303e.pdf

23. https://zakon.rada.gov.ua/laws/show/145-19#Text