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01.06.2018 | Halya Coynash

Russia ‘prosecutes’ Ukrainian Constitutional Court judges for finding its annexation of Crimea illegal

Cartoon depicting Russia’s pseudo-referendum, Putin and armed soldier without insignia
   

Russia’s Investigative Committee has launched a ‘criminal investigation’ against 15 judges of Ukraine’s Constitutional Court for acting in full compliance with Ukraine’s Constitution and international law.  This, the Investigative Committee [IC] claims, was ‘discrimination’. 

The ‘investigators’ omit Russia’s invasion of Crimea altogether, claiming only that “In March 2014 a declaration of independence of the Autonomous Republic of Crimea and Sevastopol was adopted, and a referendum held”.  The latter event supposedly resulted in a majority of Crimeans opting for “Crimea’s reunification with Russia”, with this signed and sealed by “an international agreement”.  That ‘agreement’ was found to be in compliance with Russia’s Constitution.

The omissions in this statement are formidable.  The clear requirement in Ukraine’s Constitution that any referendum be at national level is ignored.  There is also no mention of the fact that not one democratic country or international structure has recognized the so-called ‘international agreement’.  Quite the contrary, in fact.  On 27 March 2014, the UN General Assembly passed a Resolution “calling on States, international organizations and specialized agencies not to recognize any change in the status of Crimea or the Black Sea port city of Sevastopol, and to refrain from actions or dealings that might be interpreted as such”.

The only difference since then is that the language has become significantly stronger, with the UN and other bodies clearly stating that Russia is illegally occupying Crimea and condemning it’s human rights violations.

The authors of the IC statement rightly note that the Ukrainian Constitutional Court judges almost immediately found the so-called ‘independence declaration’ to be in breach of the Constitution. They hardly needed to deliberate, since the wording of Article 73 of the Constitution is quite unequivocal:  “Issues of altering the territory of Ukraine are resolved exclusively by an All-Ukrainian referendum”.

Confronted by such an obstacle, the authors go totally off the rails.  They claim that the Constitutional Court’s judgement was “discriminatory, and a fundamental principle of international humanitarian law, namely the right to self-determination, was violated.

Since Russian legislation allows for the prosecution of foreign nationals who committed a crime against Russian citizens, criminal proceedings have been initiated against the fifteen judges who are all named.  The charges are under Article 136 of Russia’s criminal code (infringing equality of human rights and civil liberties).

There is a great deal that can be said about Russia’s insistence on promoting the ‘right to self-determination’ of people in other countries, while persecuting Russians in their own country for even asking for greater decision-making powers (see, for example, Federalization as a Terrorist ActSeparatists of the world unite in Moscow while Russia steps up repression of Crimean Tatars.

The argument that ‘the will of the Crimean people’ was expressed in March 2014 was first articulated by Russian President Vladimir Putin during his address on 18 March 2014, and later presented in Russia’s “Legal arguments for Russia’s position on Crimea and Ukraine” published by the Permanent Delegation of the Russian Federation to UNESCO on 7 November 2014  

As well as avoiding mention of the Russian soldiers and armed paramilitaries who seized control on 27 February 2014 making it dangerous to express pro-Ukrainian views, Russia’s version of events also omits other compelling grounds for rejecting the pseudo-referendum held on 16 March.  These include the lack of any option for voters to choose the status quo, the fact that Russia invited a motley bunch of far-right or extreme-left politicians to act as ‘observers’ and the fact that the report  from the President’s own Human Rights Council found that the turnout had been much lower than reported, and the results not overwhelmingly in favour of joining Russia (details here).  

Bill Bowring, Professor of Law at Birkbeck College in London, has also dismissed* Russia’s claim that there had been “…the implementation of the right to self-determination by the people of Crimea”.   He is adamant that there is only one people in Crimea who, as indigenous people of Crimea, have the right to self-determination, namely the Crimean Tatar people.  It was the Mejlis, or self-governing body of the Crimean Tatar people who called on Crimean Tatars and other Ukrainians to boycott this pseudo-referendum, with this almost certainly the first trigger for the major offensive waged against the Mejlis and its leaders and the fact that Crimean Tatars have been particularly targeted by Russia’s repressive machine. 

The Investigative Committee’s accusation of ‘discrimination’ seems particularly cynical given that the UN’s International Court of Justice is currently considering Ukraine’s suit against Russia over discrimination against the Crimean Tatar people and ethnic Ukrainians in occupied Crimea.  On April 19, 2017, it found sufficient grounds to impose provisional measures, demanding withdrawal of Russia’s ban of the Mejlis, and that it ensured availability of education in Ukrainian.  The arguments provided by Russia’s lawyers were not deemed convincing, though even they did not try to claim that Ukraine’s rejection of its illegal annexation was ‘discriminatory’. 

*   Bill Bowring “Who are the "Crimean People” or “People of Crimea”? The fate of the Crimean Tatars, Russia’s ‘legal justification’ for annexation, and Pandora’s Box”, chapter in Sergey Sayapin and Evhen Tsybulenko, (Editors):  The Use of Force against Ukraine and International Law: Jus Ad Bellum, Jus In Bello, Jus Post Bellum

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