Olexiy Plotnikov, PhD (International Judiciary)
Both Ukraine and Russia are members to the European Convention on Human Rights (ECHR), which establishes compulsory jurisdiction of the European Court of Human Rights (ECtHR) and the procedure of inter-state applications. The mechanism of the European Convention does not foresee a lengthy procedure of extrajudicial dispute settlement, while the procedure of interim measures takes days, compared to months at the ICJ. Therefore, it is logical that Ukraine referred to this procedure immediately after the beginning of the annexation.
Ukraine submitted its first application against Russia claiming violations of the ECHR in Crimea on 13 March 2014, alongside with a request for provisional measures. Ukraine argued that Russia exercised effective control over Crimea since February 27, 2014, and that in the course of unlawful occupation, Russia through its agents or proxies violated Article 2 (right to life), Article 3 (prohibition of torture, inhuman or degrading treatment), Article 5 (right to liberty and security), Article 6 (Right to fair trial), Article 8 (right to respect for private life), Article 9 (freedom of religion), Article 10 (freedom of expression), Article 11 (freedom of assembly and association) of the ECHR, as well as Article 1 of Protocol No 1 (protection of property), Article 2 of Protocol No 1 (right to education), Article 2 of Protocol No 4 (freedom of movement). Ukraine claimed existence of administrative practice of killing servicemen and civilians, who were opposing the occupation.
Further, Ukraine submitted that Ukrainian nationals in Crimea are subjected to unlawful automatic imposition of Russian citizenship, as well as alleged cases of attacks, abductions and ill-treatment of journalists, religious ministers, who were not members of the Russian Orthodox Church. In addition, Ukraine contended that freedom of assembly was unlawfully restricted in Crimea. These violations, attacks and limitations were especially discriminatory for the Crimean Tatars. In its request for interim measures, Ukraine requested the Court to order Russia to refrain from such violations. The request was granted on the same day . Since then, Ukraine submitted a series of other applications to the European Court, including:
- Ukraine v. Russia (III) on behalf of Haisser Dzhemilev, son of Mustafa Dzhemilev, who was arrested, detained and subjected to ill-treatment by the de facto authorities in Crimea (later requalified into individual application);
- Ukraine v. Russia (IV) concerning a wide range of violations occurring as a result of occupation of Crimea and Russia’s military intervention to the Eastern regions of Ukraine. This application was later split into two, where the claims resulting from occupation of Crimea were combined in Ukraine v. Russia (IV), while the claims related to activities of Russia and its proxies in the region of Donbas became Ukraine v. Russia (V).
- Ukraine v. Russia (VII) concerning politically motivated criminal persecution of nationals of Ukraine in Russia, including those who denied the Russian status of Crimea or were members to political organizations that were banned under Russian law, but are legal in Ukraine.
In 2018, the Court merged all claims raised by Ukraine in relation to events in Crimea into one case Ukraine v. Russia (re Crimea), however this merger did not touch upon Ukraine v. Russia VII). Although some claims concerning the rights of the residents of Crimea (Crimean Tatars among them) are raised in the latter, it is considered as a separate case due to specific object of the claims. The applications to the European Court are confidential, and the details of are known from concise press releases and statements by Ukrainian officials.
It appears that the Government of Ukraine alleges the development of the same pattern of Russian conduct that developed through time. The publicly articulated theses are the following: 1) Russia illegally occupies Crimea, exercises full and effective control over it, and bears the responsibility for all human rights violations occurring on the Peninsula since 2014; 2) Crimean Tatars are victims of numerous human rights violations committed by agents of the Russian Federation; 3) Such violations evidence a practice of discrimination of Crimean Tatars for political purposes; 4) There is no effective investigation of such violations of remedy available for Crimean Tatars in Russia).
In the absence of the text of the Ukrainian applications or Russian objections, some information can be adduced from the oral presentations made by the parties during the hearing on September 11, 2019. It appears that Russia contested the jurisdiction of the Court ratione materiae, as well as the admissibility of the claim because of Ukraine’s alleged failure to comply with the requirement of extrajudicial settlement and the local remedies rule. Russia also contended that there is no reliable evidence confirming human rights violations in Crimea, and Ukraine’s position is based on reports of biased NGOs. The agents of Ukraine responded that recorded individual cases come together to form a general picture of repressive and discriminatory campaign against opponents of the occupation, most notably the Crimean Tatars, in violation of Russia’s obligations under the European Convention. Some assumptions about the positions of the parties can also be inferred from a similar case of Georgia v. Russia I, that was de
cided by the ECtHR in 2014. The case originated from discriminatory practices against ethnic Georgians residing in Russia. The latter objected both on admissibility and on the merits.
As to admissibility, Russia claimed that Georgia failed to comply with the local remedies rule, and that the application has been submitted after the expiry of the six-months’ time limit for applications established by the Convention. Further, Russia contested the validity of evidence, and submitted that the applicant failed to provide details of individual violations and to demonstrate that these violations amounted to administrative practice. The Court rejected these arguments, stating that the local remedies rule does not apply where the applicant state complains of certain practice as such. On the question of time limitation does not apply to the continuing situations, and the situation of discriminatory administrative practices. However, it is impossible to ascertain the existence of such practice without examination of the case on the merits. For these reasons, the Court found the application of Georgia admissible .
When considering the case on the merits, the ECtHR, with reference to the witness statements and NGO reports, found that such practice existed. Importantly, the Court did not place on Georgia the burden of proving the practice, but decided the question on the basis of evidence that it had in its disposal. Because it was established that administrative practice of discrimination of Georgians in Russia existed, there was no need for application of the local remedies rule. As for the six-months rule, the Court simply found that since at least some allegedly discriminatory administrative decisions were issued by the Russian authorities less than six months before submission of the application, the six-month requirement was complied with. Another important procedural finding of the Court in this case was the standard of evaluation of evidence. The Court confirmed its relaxed approach “based on free evaluation of all evidence, including such interferences as may flow from the facts and the parties’ submissions” [3.
In its judgment, the ECtHR basically upheld all Georgian claims of violations of conventional provisions, including right to freedom from ill-treatment, right to liberty and security, right to have an effective remedy and prohibition of collective expulsion of aliens. With specific regard to discrimination, the Court ruled that collective expulsion of Georgians was per se discriminatory, and there is no need to for a separate consideration of claims of violation of prohibition of discrimination.
In a separate judgment on just satisfaction, the ECtHR found, that although not all the individuals who suffered from discriminatory practices were identified, the Russian Federation is to pay Georgia a sum of 10 000 000 Euros for distribution by the applicant government to 1 500 individual victims of various violations under supervision of the Committee of Ministers of the Council of Europe. At that, the Court rejected the opinion of Judge Dedin that compensations were payable directly to individual victims rather than to the applicant government .
This judgment provides a useful insight into the possible outcome of the inter-state case between Ukraine and Russia related to Crimea. The jurisdictional issues of the Georgian and Crimean cases are virtually identical, while possible concerns on the credibility of evidence (like NGO reports) or indefinite circle of victims, in the Georgian case were resolved in favor of the applicant. There is hardly a reason to believe, that the ECtHR will utilize a different approach in Ukraine v. Russia re Crimea.
Likewise, most claims related to discrimination of individuals are similar and rely on allegation of existence of administrative practice of unfavorable treatment of certain groups supported, or, at the very least, tolerated by the state. Therfore, chances that the ECtHR will upheld most, if not all, Ukrainian claims are high. In such a case, the ECtHR is likely to order Russia to pay compensation in favor of Ukraine for distribution to individual victims, and the sum of this compensation will be considerably higher than in Georgia v. Russia, because alleged violations seem to be graver (for example Ukraine claims violations of the right to life, which Georgia omitted), and the number of victims is higher. What is more, the process of execution of the judgment of the European Court is controlled by the Committee of Ministers of the Council of Europe, where the Russian Federation has no decisive voice.
Russia has two possible lines of defense, which it has not tried in the case of Georgia. Firstly, it may argue that Ukraine has no standing to apply to the European Court because Crimea is a territory of the Russian Federation. The representatives of Russia mentioned the “referendum” in Crimea in their public oral presentations, but it is unknown what place does this possible submission take in the structure of the Russian position. It is questionable whether such submission would be beneficial for the Russian position, since in such a case the ECtHR would have to respond (at least for instrumental purposes) whether Crimea is Russia or not, and the response to this question will hardly be in favor of the respondent.
On the other hand, the Court will inevitably deal with the question of status of the peninsula in this or that way. At that, it will rely on its previous findings in inter-state (Northern Cyprus) or individual (Transnistria) cases concerning occupied territories. The general standard of the Court is that the mother state remains a sole and legitimate owner of the occupied territory, while responsibility of state may arise in case of military occupation of the territory of another state [see, for example, 5]. Thus, even if Russia will raise the territorial argument, it will almost certainly fail.
Another strategy that Russia may attempt to utilize is not to recognize the decision of the ECtHR and not to execute it. In 2015, Russia’s Constitutional Court ruled that the judgments of the ECtHR are not executable in Russia, if they contradict the Russian Constitution [6, P. 176]. It is expected that in 2020 the Russian Constitution will be amended in order to prioritize the Constitution over international treaties or judgments of international courts . Since Russia previously included Crimea into its Constitution, any judgment of an international court where Crimea is mentioned as Ukraine, would automatically make it invalid or unexecutable under Russian law. Therefore, Russia would rather suffer from additional sanctions or leave the Council of Europe, than execute a possible judgment of the European Court of Human Rights in the Crimean case.
Similar scenario is likely to occur in individual applications against Russia. As of December 2018 (more recent information is not available), there were about 4 000 individual applications concerning events in Crimea and Eastern Ukraine. In 2016, the Court rejected over a thousand of manifestly ill-founded applications, and decided to adjorn the remainder, including high-profile cases like Dzhemilev v. Russia and Sentsov v. Russia, pending the outcome of the inter-state applications. It is expected that the Court will develop a single standard for resolution of such cases based on its findings concerning the jurisdiction and control of Crimea, existence of administrative discriminatory practice, unified approach towards the local remedies rule and other issues. It is highly possible that at least some of the expected judgments will result in finding the violations of the Convention by Russia, and that these judgments will in some form include explanation on the legal status of Crimea. Consequently, these judgments may also be problematic from the point of view of amended Russian law, and will serve as another argument in favor of blanket refusal of recognition of the ECtHR judgments.
- Ukraine v. Russia, re Crimea, (no. 20958/14), Grand Chamber hearing on inter-State case Ukraine v. Russia, ECHR 309 (2019) Press-release of September 11, 2019.
- Georgia v. Russia (I), no 13255/07, Decision as to the Admissibility, June 30, 2009.
- Georgia v. Russia (I), no 13255/07, Judgment of July 3, 2014.
- Georgia v. Russia I, no 13255/07, Judgment (Just Satisfaction) of January 31, 2019.
- Ilascu and others v. Moldova and Russia, no 48787/99, Judgment of July 8, 2004.
- Fleig-Goldstein, Rachel M. “The Russian Constitutional Court versus the European Court of Human Rights: How the Strasbourg Court Should Respond to Russia’s Refusal to Execute ECtHR Judgments”. Columbia Journal of Transnational Law 56 (2017): 172-218.
- Biyatov, Yevgeny. “What Changes Is Putin Planning for Russia’s Constitution?”. The Moscow Times. January 16, 2020. https://www.themoscowtimes.com/2020/01/16/what-changes-is-putin-planning-for-russias-constitution-a68928.