Our Association sent submission to UN Working Group on Enforced or Involuntary Disappearances for its research devoted to the realization of the Declaration on the Protection of All Persons from Enforced Disappearances, 1992. Association reminded in submission on the UN General Assembly Resolution 76/179 on 16 December 2021 that condemned the reported serious violations and abuses committed against residents of Crimea, in particular extrajudicial killings, abductions, enforced disappearances, politically motivated prosecutions, discrimination, harassment, intimidation, violence, including sexual violence, arbitrary detentions and arrests, torture and ill-treatment, in particular to extract confessions, and psychiatric internment, as well as deplorable treatment and conditions in detention, and their forcible transfer or deportation from Crimea to Russia, as well as reported abuses of other fundamental freedoms, including the freedoms of expression, religion or belief and association and the right to peaceful assembly,
Association pointed the attention of the UN officials on the European Court on Human Rights in decision dated 16 December 2020 in case 20958/14, which declared admissible, without prejudging the merits, the Ukraine’s complaints regarding the period under consideration (2014-2020) concerning the alleged existence of an “administrative practice” of enforced disappearances and of a lack of an effective investigation into the alleged existence of such an “administrative practice”, in violation of Article 2 of the European Convention on Human Rights in the Crimea.
Researching this issue (decision’s paragraphs 402-404) ECtHR pointed in case 20958/14 that as to the “official tolerance” element of an “administrative practice”, it may be found to exist on two alternative levels: that of the “direct superiors” of those immediately responsible for the acts involved or that of a “higher authority” who knew or ought to have known of the acts in question. The European Court considered that the available material provides in case 20958/14 evidence of “official tolerance” of the alleged “administrative practice” under this head. In particular, where the complained enforced disappearances, as alleged by Ukraine and noted in the international organizations’ reports, had been committed by members of the Russia-controlled “Crimea self-defense” and a “Cossack group” as potential enforced disappearances’ perpetrators.
Association stressed in the submission that Russia do not recognize the binding power of pointed UN Declaration, 1992 and did not ratify the International Convention on the Protection of All Persons from Enforced Disappearances, 2006, so in the Crimea where the Russian laws are illegally applied by the invaders, local residents can’t apply effectively the demands of Declaration and Convention, defending from the so-called “authorities”. Ukraine ratified the International Convention by Law № 525-VIII, 2015 and later, after the visit of the UN Working Group on Enforced or Involuntary Disappearances oа Ukraine, it adopted the law “On Legal Statute of Disappeared Persons” № 2505-VIII, 2018 in compliance with Declaration, 1992. The Rules of Proceeding the Common Register of Person, Disappeared in Special Circumstances was adopted by the prescript of Ukraine’s Government, 2019 № 726. Law № 525-VIII, 2015 amended Criminal Code of Ukraine by the article 146-1 “Enforced Disappearances”
Association pointed in its submission that there is no domestic courts’ practice yet in cases related with enforced disappearances in Ukraine and there are no sentences in force on article 146-1 of Criminal Code, but a lot of criminal proceedings, connected with such article, were started by Ukraine’s police. And Russia-controlled so called “courts” in the Crimea use Russian criminal law illegally where there is no special responsibility for the enforced disappearances at all. Association mentioned in its submission that, as Ukraine ratified the International Convention, 2006, by Law № 525-VIII (and Russia did not), regarding to demands of IV Geneva Convention Russia has to use in the Crimea Ukrainian laws but not own legislation. As according to the article 9 of Constitution of Ukraine International Convention, 2006 is a part of the national legislation of Ukraine, so Russia has to execute in the occupied Crimea the demands of the International Convention on the Protection of All Persons from Enforced Disappearances, but Russia refuses to do is.
Association stressed in its submission that above-pointed case 20958/14 in the European Court of Human Rights regarding enforced disappearances in the Crimea seems to be a strong example of usage the provisions of Declaration, 1992 and the International Convention, 2006 on the next stage of merits that will be after the procedural decision on jurisdiction on 16 December 2020 mentioned above. The individual complaints of relatives of the enforced disappeared persons to the ECtHR also may reflect the relevant Courts’ provision. Also the provisions of Declaration, 1992 and the International Convention, 2006 have to be reflected in the UN General Secretary annual reports regarding human rights situation in the Crimea and in the next Crimea-related resolutions of the General Assembly.