Borys Babin, professor
On January 14, the Grand Chamber of the European Court of Human Rights in plenary session accepted the absolute majority of the requirements of the interstate statement “Ukraine v. Russia” filed on human rights violations in Crimea from the beginning of Russian aggression until August 2015 (Ukraine described further violations in subsequent statements). The decision on admissibility in subsequent events will no longer be considered separately by the Court, but ECtHR will resolve this issue together with the consideration of subsequent applications (38334/18) on the merits. Most likely, it will be completely identical to the current one.
Among other things, the ECtHR was to examine the existence of “administrative practices” in Russia’s actions regarding human rights violations in Crimea, as described in Ukraine’s statements № 20958/14 and № 42410/15, as the Russian Federation denied such practices and denied any responsibility for the events in Crimea. until March 18 (21), 2014. After all, the absence of such a practice would force Ukraine, according to ECHR standards, to go to Russian courts to apply to Strasbourg.
Therefore, todayєs decision of the European Court of Human Rights confirms the existence of Russiaєs administrative practice in Crimea regarding most of the offenses declared by Ukraine.
First, it will mean that the case will be considered by the Court on the merits of Ukraine’s claims. Under such conditions, given the irrefutable evidence of human rights violations, the case will be decided by Strasbourg in favor of Ukraine in the vast majority of episodes. After all, in relation to these violations, Ukraine proved in Сourt the repetition of these acts by the Russians and the “official tolerance” of the Russian Federation to such human rights violations. At the same time, the Court has now merged into one “Crimean” case not only applications № 20958/14 and № 42410/15, but also the above-mentioned application № 38334/18, on which it will issue a joint decision.
This applies to the enforced disappearances of Crimeans and the evasion of the Russian Federation from their investigation (right to life, Article 2 of the Convention); ill-treatment of detainees and unlawful detention (Articles 3 and 5 of the Convention); application of Russian law in the Crimea, as the Crimean “courts” since February 2014 are illegal in terms of Art. 6 of the Convention; automatic granting of “Russian citizenship” and unlawful searches (Article 8 of the Convention); persecution of religious figures other than representatives of the Moscow Patriarchate, searches of religious sites and confiscation of religious property (Article 9 of the Convention); persecution of non-Russian media (Article 10 of the Convention); prohibition of peaceful assembly and arrest of protesters (Article 11 of the Convention); seizure of private property without compensation (Article 1 of the first protocol); squeezing Ukrainian language out of schools and persecuting Ukrainian-speaking students (Article 2 of the first protocol); restriction of freedom of movement between Crimea and mainland Ukraine due to the transformation of the administrative line into a de facto “border” (Article 2 of Protocol No. 4) and discrimination of Crimean Tatars in their above-mentioned rights under Art. 8, 9, 10 and 11 (Article 14 of the Convention).
Of course, Russian propaganda will now claim that some of Ukraine’s demands were not satisfied by the Court, but it was quite difficult to prove the violation of the rights of Crimeans without access to the peninsula. Therefore, Ukrainian lawyers of the Ministry of Justice coped with this and did not only do their best, but even seemingly impossible. However, most of the time in this case, Ukraine did not purchase the services of leading Western law firms and conducted the proceedings on its own.
Secondly, it is extremely important that the ECtHR has recognized Russia’s effective control over Crimea not since March 18, 2014, but since February 27. In its decision, the ECtHR justified this by saying that the number of Russian troops in Crimea had doubled during that time, that such an increase had not been agreed with Ukraine, that Russian troops outnumbered Ukrainian ones, and that there were no grounds for such an increase. The ECtHR took into account the evidence provided to Ukraine by the active actions of the Russian military in the Crimea, in particular the disarmament and blockade of the Ukrainian army, and also pointed to the confession of the Russian leadership in the seizure of the peninsula. The Court also refused, as required by the Russian Federation, to recognize its “territorial jurisdiction” over Crimea, and stated that at this stage of the case the Russian authorities’ authority over the peninsula was seen as “effective control”.
This decision of the European Court of Human Rights completely refutes the thesis of Russian propaganda about the “referendum”, as allegedly “expressing the will of the Crimean people”, because at the time of its holding Russia had already seized Crimea, which has now established Strasbourg. Moreover, the ECtHR refused to consider Crimea as “Russian territory”, although it made a reservation that in this case it could not assess the legitimacy of the attempt to annex Crimea. Strasbourg cannot take another position, because it will be a way out of its conventional powers.
The decision of the European Court of Human Rights of January 14, 2020 “opens the door” for thousands of individual applications of Crimean citizens to the European Court of Human Rights related to the occupation. After all, Strasbourg has in fact suspended their consideration pending a decision on the admissibility of the interstate application, which is currently being issued. Therefore, the communication of these cases and their further objective consideration by the ECtHR becomes a matter of the near future.
The approved decision of the European Court of Human Rights will also be of exceptional positive significance for the International Criminal Court’s consideration of Russia’s war crimes in Crimea and for the trial initiated by Ukraine in the UN International Court of Justice on Russia’s violation of the International Convention on the Elimination of All Forms of Racial Discrimination.