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Crucial victory for Ukraine in ECHR case against Russia over Crimea

15.01.2021
Halya Coynash

Russian soldiers without insignia, the children of Crimean Tatar political prisoners hoping for a glimpse of their imprisoned fathers

It took frustratingly long to get there, but the European Court of Human Rights [ECHR] has finally paved the way for multiple judgements over Russia’s violations of human rights in occupied Crimea.  The Grand Chamber decision on 14 January 2021 found Ukraine’s complaints against Russia over violations in Crimea partly admissible and essentially determined that Russia has occupied Crimea since 27 February 2014.   The only reason it was deemed partly, not wholly, admissible, was because ECHR considered that Ukraine had not provided sufficient proof to back a very small part of the huge number of complaints. 

The Court determined that it did not need to decide “whether Crimea’s admission, under Russian law, into Russia had been lawful from the standpoint of international law.”  In fact, however, by agreeing that Russia had wielded effective control since 27 February 2014, it de facto pointed to Russia’s flagrant violation of international law.  27 February was the day that Russian soldiers without insignia, seized control of government buildings, etc. on Ukrainian territory.  Russia’s narrative is quite different, with it claiming that  “the Crimean people” decided to hold a referendum and that it was merely the results of that event, on 16 March 2014 that resulted in Russia’s ‘official’ control dating only from 18 March. 

The list of violations that Ukraine has asserted is huge, and covers almost all the rights enshrined in the European Convention on Human Rights.  They include violations which are also part of Ukraine’s case against Russia before the UN’s International Court of Justice (over violations of the International Convention on the Elimination of All Forms of Racial Discrimination.)

Although there is still a long way to go, this is a victory for Ukraine.  Russia is now facing liability over its violations in occupied Crimea and Donbas in several international courts (ECHR; ICJ, the International Criminal Court and the International Tribunal for the Law of the Sea).  Moscow’s sole argument when faced with Ukraine’s inter-state claims has been to deny that this or that judicial body has the jurisdiction to examine the case. It is a policy that is, thankfully, proving to be doomed. 

In determining Russia’s jurisdiction from 27 February 2014, the Court took into account “the size and strength of the increased Russian military presence in Crimea from January to March 2014, without the Ukrainian authorities’ consent”.  It noted that “the Ukrainian government had provided detailed and specific information, backed up by sufficient evidence, to prove that the Russian troops had not been passive bystanders, but had been actively involved in the alleged events.

This is one of three inter-state cases, as well as over 7,000 individual applications, pending before the Court over events in Crimea, Eastern Ukraine and the Sea of Azov.  As reported here, the Court recently decided to combine Ukraine’s inter-state case against Russia over its actions in Eastern Ukraine with the case brought by the Netherlands against Russia over the downing by a Russian BUK missile of Malaysian airliner MH17. 

In its outline of the case, the Court notes that Ukraine has stressed that it is not seeking individual findings of violations, but aims to demonstrate that “there was a pattern of violations, to put an end to them and to prevent their recurrence. “

As well as detailing its reasons for rejecting the Russian claim that it had no control over Crimea before 18 March 2014, the Court also says that it had “particular regard to two uncontested statements by President Putin. The first had been made in a meeting with heads of security agencies during the night of 22 to 23 February 2014, saying that he had taken the decision to “start working on the return of Crimea to the Russian Federation”, while in the second, during a television interview given on 17 April 2014, he had expressly acknowledged that Russia had “disarm[ed] military units of the Ukrainian army and law-enforcement agencies” and that “Russian servicemen [had] back[ed] the Crimean self-defence forces”.

Very importantly, the issue was by no means only when Russia had begun to wield effective control.  The Russian Government claimed that “it would be inappropriate” for the Court to consider the legal basis of its jurisdiction after 18 March since that, supposedly, “would take the Court into questions concerning sovereignty between States that [were] outside its jurisdiction”.   The Court essentially rejected this argumentation and accepted Ukraine’s position which is that Russia’s jurisdiction over Crimea constituted “effective control over an area”.

The Court found “sufficient prima facie evidence regarding both the “repetition of acts” and “official tolerance” of the following violations:

enforced disappearances and the lack of an effective investigation into such a practice (under Article 2 of the European Convention on Human Rights);

ill-treatment and unlawful detention (Articles 3 and 5);

the application of Russian law in Crimea with the result that as from 27 February 2014 the courts in Crimea could not be considered to have been “established by law” within the meaning of Article 6;

automatic imposition of Russian citizenship and raids of private dwellings (Article 8);

harassment and intimidation of religious leaders not conforming to the Russian Orthodox faith, arbitrary raids of places of worship and confiscation of religious property (Article 9);

suppression of non-Russian media (Article 10);

prohibiting public gatherings and manifestations of support, as well as intimidation and arbitrary detention of organisers of demonstrations (Article 11);

expropriation without compensation of property from civilians and private enterprises (Protocol No. 1 § 1);

suppression of the Ukrainian language in schools and harassment of Ukrainian-speaking children at school (Protocol 1 § 2);

restricting freedom of movement between Crimea and mainland Ukraine, resulting from the de facto transformation (by Russia) of the administrative delimitation into a border (between Russia and Ukraine) (Protocol No. 4 § 20;

targeting Crimean Tatars (under Article 14, taken in conjunction with Articles 8, 9, 10 and 11 of the Convention and with Protocol No. 4 § 2 to the Convention.)

“The Court found in particular that the above allegations were consistent with the conclusions set out in a number of reports by intergovernmental and non-governmental organisations, notably a report of 2017 by the Office of the United Nations High Commissioner for Human Rights3 . Moreover, as concerned certain allegations, the regulatory nature and the content of the measures complained of provided in themselves sufficient prima facie evidence. “

All of the above is of immense importance, but it is worth stressing one in particular since Russia is holding over 90 Crimean Tatar and other Ukrainian political prisoners.   While ECHR says, on the one hand, that it is not commenting on whether , what it calls, “Crimea’s admission, under Russian law, into Russia” violated international law, it has accepted that Russia is merely exercising “effective control over Crimea”.  The Court has thus taken the same position as the UN General Assembly, the International Criminal Court and other international bodies and effectively found Russia to be an occupying state.  As such it is expressly prohibited by the Fourth Geneva Convention from applying its legislation on occupied territory.  If the courts in Crimea cannot be considered to have been “established by law” within the meaning of Article 6, then all such politically motivated trials and horrific sentences are in grave violation of the right to a fair trial.

 

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