"ARE WE KEEPING A MORATORIUM ON LAND? IF SO, THE STRASBOURG COURT WILL AWARD BILLIONS OF COMPENSATIONS TO EVERYONE INTERESTED" 19.12.2018
Ivan Lishchyna is the Deputy Minister of Justice, but he is also authorized for special functions: he represents interests of Ukraine in communications with the European Court of Human Rights.
And the ECHR currently considers special cases. Here, we plan to legally prove that it is the Russian authorities, and not some mythical "tractor drivers and miners", are managing hostilities in Donbas. We also expect the first judgment in the Crimean complaint "Ukraine v. Russia" in the near future.
In addition to the trial with the Russian Federation, judgments of paramount importance to us are being delivered in Strasbourg. In particular, this year the ECHR obliged Ukraine to lift or revise the moratorium on the sale of agricultural land. However, despite the court's judgment, the Rada is preparing to extend the moratorium on land again.
"WHEN YOU SUBMIT EVIDENCE – THEY REACH RUSSIANS"
The hearing in the case Ukraine v. Russia re Crimea will take place in Strasbourg on 27 February. We expect the first judgment to be delivered in a year. What do we count on?
We look forward to the Court's decision on the admissibility of this case. Regarding all inter-State issues, Russia says that they are unacceptable and Ukraine has no right to complain at all.
At the request of the Court, we and the Russian Federation must provide a 30-page document concerning this case admissibility justification by the end of the year. The Russian party also disagreed with this and offered to postpone the hearing ‘until unidentified date’ and to give them time until May next year to prepare comments in response to our position.
Are they deferring the case?
Of course they are. The fact is that back in April 2017, we provided quite thorough additional explanations to the Crimean case. There was a large array of documents, 50 additional witnesses, lengthy videos, photos confirming the fact of aggression and human rights violations.
And now the Russians are saying: "Why are you appointing a hearing? We haven't had a chance to comment". The court did not agree to postpone the hearing, did not agree to change the volume of the submissions, but it postponed the date of submission of arguments by the parties from 30 November to 30 December.
Will Russia be present on 27 February in Strasbourg?
It looks like it will. At least, they took part in all the previous stages. Indeed, their comments on the case are sometimes ridiculous, but as far as I understand, they have some political need to act just like that.
What was in our new body of evidence regarding Crimea? Any videos about the annexation that we found only in 2017?
No, the issue is different. At the beginning of the process, the possibilities for gathering evidence were quite limited.
It used to be like this: they found a video on YouTube – and added it to the files for the Court.
Since I have been involved in arbitration for a significant part of my life, in 2017 I also formed the submissions like it was for arbitration purposes, where having a video are not enough.
We were looking for people who filmed it, we were looking for people who were in it, and we demanded a notarized testimony from everyone about how it happened. Most of these videos are actually on YouTube, and still unknown videos constitute only a small part thereof.
The same is true for photos. However, here we submitted many pictures previously unseen with a notarized description from the author of the actions taking place on each of them.
Consequently, we have got such an amount of information that there was even a technical problem with its transmission to Strasbourg. We have a separate line of communication with the Court. And if the Court has a notification for us, it downloads the document through it, and so do we. However, this line was incapable of transmitting the latest Crimean evidence. We had to separately agree with the ECHR on how to transfer hundreds of megabytes of information to it.
Is it certain that we will not harm the pro-Ukrainian activists who are currently in Crimea, if we add to the case their testimony or data relating to them?
You are correct, this is a serious issue. If you present any evidence, it must reach the opponents, Russians.
There is one famous person who still resides in Crimea and was ready to testify in spite of everything – but we were asked not to take those testimonies, because it would endanger that person. Thus, we made a decision to exclude the testimonies of that person, although they would be brilliant, very strong.
For the same reason, we cannot provide evidence classified as restricted. Of course, we could submit them with a reservation like "not to be shown to Russians", but what is the point of it?
The court will be the first to say: why do we need such evidence?
Thus, we had to either limit ourselves to open data – or to declassify them. And many of such documents are also among the evidence. The Security Service of Ukraine recently provided us with very interesting, cool information concerning Donbas, which we will submit to Strasbourg in the near future. However, declassification of this data took us much more time than its actual processing.
"WE WILL DETERMINE THE AMOUNT TO BE COMPENSATED BY THE RUSSIAN FEDERATION DURING THE FINAL STAGE"
What period do our claims relate to?
This is an important question. Our law stipulates that the beginning of the occupation of Crimea is 21 February. There really is a video on YouTube shot that day in Crimea, where a Russian military convoy is moving somewhere. However, we did not manage to find its source. We do not know who, when, where and how filmed it, and what actually happened on it. We have no legal confirmation of this date. Therefore, in the evidence before the European Court of Human Rights, we started from what we can clearly prove, and this is the night from 26 to 27 February, when the Verkhovna Rada of the Autonomous Republic of Crimea was seized.
And from this moment in our lawsuit we count the beginning of the so-called effective control of the Russian Federation over the peninsula.
Taking control over the Crimean Verkhovna Rada and receiving the necessary votes, Russians simultaneously captured Simferopol airport, blocked Belbek with Mamchur's military and jet fighters, set up checkpoints on Chongar, and blocked several units of Ukrainian Air Force. It seems that on the same day there were several checkpoints with local collaborators and from time to time Russians at the entrance to Simferopol, Sevastopol and on key roads.
Russians say that their soldiers in Crimea restrained the Ukrainians so that they would not start shooting at peaceful demonstrators, but our evidence proves that this is not true. Those Ukrainian soldiers who could theoretically do so - the marines and the internal troops were not even attempted to be blocked until March 3.
Therefore, Russians aimed to close the airspace and block Crimea.
Meanwhile, they brought in additional units to begin a mass blockade of Ukrainian military units after March 3.
Do we also have evidence of the arrival of Russian military equipment?
Of course, and a lot of it. They include video, testimony of witnesses and photos. There is one serviceman, but I will not disclose his identity. He was captured by Russians, but he managed to record a few videos and upload them on YouTube.
He provided very detailed information. For example, how he learned about the appearance of new people from informants in Russian military units. At first at dormitories of the Russian Marines. Then our border guards decided to check who was on one of the Russian LLS (large landing ships), which came to Sevastopol. The Russians then did not allow to board it and immediately drove all their LLS outside the exclusive economic zone - because the major part of special forces and paratroopers were on these LLS. They were waiting for the moment when they would be able to go ashore and start the operation.
So now we are counting on the decision of the European Court of Human Rights on jurisdiction and that the Russians actually controlled the peninsula from February 26-27. What is next?
In the next stage, we expect, the ECHR will recognize the fact that Russia has violated a number of articles of the European Convention on Human Rights in Crimea, and there will be a third stage - determining the amount of compensation.
In our complaint, we submitted to the ECHR an assessment of the compensation, which we consider fair. What amount is indicated there?
Yes, it was filed in 2014. But now I do not consider it acceptable to talk about amounts.
(EP note: at the end of 2014, Minister Petrenko claimed 1 trillion 80 billion in estimated compensation)
Finally, cannot predict which violations will be confirmed by the Court.
Our complaint contains a number of claims. It includes "right to life" provisions concerning disappearances and killings of Ukrainian servicemen and activists. Also, torture. There is a situation with two places of illegal detention of Ukrainian activists and servicemen - in the basement of the Simferopol military enlistment office, where was a "torture chamber" (most likely under management of Igor Girkin), and in Sevastopol, in the guardhouse of the Russian Black Sea Fleet. There were fewer instances of torture in Sevastopol, however, they liked to organize "mock executions" - to take people out and say "now we are going to shoot you, dig a grave." Our complaint also includes violations related to the Mejlis and many other episodes.
When the Court will confirm these violations - then we will determine the amount of compensation.
Do we realize that Russia will almost certainly refuse to comply with the ECHR's judgment?
In the current political situation - probably so. But even if they leave the Council of Europe, it will not remove the issue of non-compliance.
This judgment will hang over them like a sword of Damocles as long as Russia exists as a state.
Moreover, this judgment is of utmost importance in order to officially prove the fact of occupation, to confirm Russia's control over Crimea, starting since February 2014.
The judgment of the European Court of Human Rights will confirm that there were not "public festivities", but a purposeful policy of Russia. Currently, we understand this, but how well people west of Chop understand is in question. Afterwards it would be a legally established fact, which cannot be departed from.
And, of course, the final judgment on compensation from the Russian Federation will be important. Someday Russia will have to comply with it. In historical perspective, court judgments of this level have almost always been enforced, in either way.
When Russia loses arbitration, its enforcement can be achieved by seizing Russian property abroad. Does it work with the ECHR?
No, there is no such possibility for judgments within the Council of Europe. However, non-compliance with international court rulings is important for the country's investment climate. Investors who think about projects in Russia care regarding their finances security.
And I give 100% that sometime in the future, the implementation of international court judgments will be one of the conditions for lifting sanctions imposed against Russia.
Theoretically, Russia could become the second North Korea - in which case we will really have a very few ways to influence it. However, it is not likely to take place.
"THE COURT WILL NEED COURAGE TO TELL RUSSIA: YOU ARE LYING"
How does the case against Donbas differ from the Crimean one?
There are two key differences.
The first is that Russia does not deny the occupation of Crimea, but offers a different legal assessment of this fact.
They acknowledge that the "green men" were their servicemen, but say that they were there on lawful grounds and "protected peaceful demonstrators." They recognize thecontrol over Crimea, however stating that "we possess control only since March 21, and it was officially established by the constitutional federal law on the inclusion of Republic of Crimea to Russia", however, no "Republic of Crimea" was in existence then.
Therefore, many facts Russians do not even deny. It remains for the court to give them a legal assessment.
In Donbas - the opposite situation.
We say that there were and are Russian servicemen, and those who are not Russian servicemen are subordinated to the Russian military leadership, armed with Russian weapons, dressed in Russian uniforms and accountable to the Russian General Staff.
And Russia denies all claims. "They are not there."
Probably, that is why the Court decided to consider Crimea first, because the case there is simpler. In the situation with Donbas, the Court will need a courage to say to a member state of the Council of Europe, a permanent member of the UN Security Council: "You are lying."
But such situations have already existed - for example, the case of "Ireland v. The United Kingdom" concerning the actions of the British secret services in Northern Ireland in the 1970s, namely the use of torture by them. Britain then denied everything Ireland had said, and the ECHR, on the basis of witnesses questioning and documents, found that London was not telling the whole truth.
Although there were opposite situations. For example, the case of Chigarov v. Armenia concerning Nagorno-Karabakh. There, Armenia denied that its troops were in Nagorno-Karabakh, and the ECHR ruled that it could not establish with sufficient clarity whose troops it was - but still acknowledged Armenia's effective control over the territory on the basis of other factors, such as economic control, cultural connections, political support etc.
This is Plan B for us, and we also are proving it in our complaint. However, it is of great importance for us to receive the decision of the Court confirming military presence of Russia in Donbas.
Are we arguing in the application that Russians are responsible for torture, for murders?
What if a citizen of Ukraine who sincerely believes in the “DPR” killed or tortured?
The ECHR has an established practice: if one state exercises effective control over a part of the territory of another, then all actions of the local administration are the responsibility of the former - which possesses an effective control.
This is exactly the situation with Russia-controlled Transnistria.
For example, there was a recent judgment regarding the Moldovan language studies in Transnistrian schools. I doubt that the Kremlin controls the preparation of school curricula in Transnistria, but the ECHR ruled that Russia is responsible for all actions of all administrative bodies on this territory, and therefore their violations are violations of the Russian Federation.
In Donbas, the situation is even simpler, because the militant who committed the crime - even if he is a Ukrainian citizen - is still dressed in Russian uniform and has a Russian machine gun, which was delivered to him by Russian "humanitarian convoys".
But in our application regarding Donbas there is another important difference from Crimea. Do you know about the case against NATO members after the bombing of Belgrade?
I don't know, tell me.
This is a complaint known as "Bankovich and others against member States of Alliance", and it adds such "magical uncertainty" to our and Georgia's complaints regarding Russian aggression.
It concerned the situation when NATO planes bombed a television broadcasting centre in Belgrade. The victims and relatives of victims then filed lawsuits against member States of Alliance. The ECHR replied that the NATO military did not have an effective control over the bombed territory, and that Yugoslavia was not a member of the Council of Europe, so NATO countries were not responsible for human rights violations in that territory.
But now let's move back to 2014, the Ukrainian-Russian border. Along the border are Ukrainian troops trying to separate "LDNR" from supplies from Russia. And eventually Russians place their artillery and bomb the territory where our troops are stationed, from both sides - from Russia and from temporarily occupied territories of Donetsk and Luhansk regions. If we will apply the Serbian precedent, it will appear that they can smash everything there and kill everyone and still act in compliance with the European Convention on Human Rights.
Well, Ukraine is a member of the Council of Europe, unlike Yugoslavia.
I agree, but there is really no control by the Russian Federation over the strip of territory where our military is stationed. Therefore, we are faced with the task of proving that Bankovich's "approach" cannot be exactly repeated in our situation. After all, it would be wrong to believe that the shooting of our military by the Russians from both sides is not a of human rights violation.
"WE HAVE SURNAMES, COVER DATA, DOCUMENTS ..."
We have more than once submitted to Strasbourg additions to our complaint about Donbas. Why?
Russia's actions in the Donbas really require us to submit new data to Strasbourg.
We all know that the situation with an effective control has changed. If at the beginning of the aggression there were, in fact, gangs, which chaotically obeyed the curators in Russia, then since 2015, Russia has structured its control.
Now there are two army corps with a more or less established hierarchy, with a single headquarters in Novocherkassk. We have already reported this to Strasbourg, but "simply for the record", without detailed confirmation of it. And now we have received evidence of this, and soon we will provide the ECHR with more or less thorough information regarding those leading the military from Russia - with real names, cover data, documents, interceptions etc.
Is not it going to postpone the judgment rendering? After all, judges must get acquainted with the new materials, Russia must answer.
On the one hand - yes, it renews the procedure. On the other hand, we also submitted amendments regarding Crimea last year, and it did not prevent the Court from scheduling the hearing for February 2019.
And let's be realistic: I don't think that our complaint on Donbas will be considered very quickly - rather, it is possible to expect hearings in 2020. Until then, Russia will have plenty of time to comment on all the new information we have provided.
Of course, in theory, Russia can say, "We need a year to consider this." But we expect that the ECHR will reduce this period and there will be no significant delay.
"WE CAN FINALLY CLOSE THE STATE'S DEBT ISSUE"
What do we have to do with the payment of compensation under ECHR judgments?
We pay everything, and on time, although until 2015 there were really problems with this.
During last few years, we have spent 800 million hryvnias a year on this. Now the "Ivanov-Burmych group" for non-execution of court judgments against the state, which accounted for the major share of payments, has disappeared. The court has not ruled on it for now. Thus currently the amount is large, but not that impressive - we have requested 300 million in the budget for next year.
However, more than 12,000 such complaints remain in Strasbourg. Are we willing to pay these people?
Of course, we have to do it. We even appealed to the ECHR to repay debts to those who are registered with them as "Burmych's group". There even were finances for it then - we estimated that there was a debt of about UAH 300 million.
But the Court replied: "No, we will not provide you with information regarding the complainants, because we do not want you to solve the problem of only those people who applied to the ECHR. You must create a system that will allow everyone who won against the state to receive money."
How many such people are there in Ukraine and what is the amount of debt?
No one knows that! I tried to find it out for two years.
Theoretically, the source of information could be a register of court judgments, but it is impossible to separate judgments against all state bodies, state enterprises and so on. This is a judgment not against the state of Ukraine, but, for example, against the Starobilsk district department of social security. And even if we filter out all decisions, we will have a new problem. Our register of enforcement proceedings and register of court judgments are not related, and it is impossible to separate those judgments that have already been executed. Not to mention that there is a fairly large layer of judgments under which the applicants did not receive writs of execution and did not even apply to the enforcement service. And the ECHR says that, regardless of whether or not the applicant has applied for enforcement, the court's judgment must be enforced.
And we have only the Pension Fund which approximately knows how much it owes, even for those judgments where there are no writs of execution. And, for example, the Ministry of Social Policy says that it has no data on debts at all, because their local branches report not to them, but to regional state administrations. We appealed to the regional state administration, but either did not receive any answers from them at all, or instead of the regional state administration the regional council answered for some reason, assuring that they have no debts at all.
You can imagine from these examples how difficult the task is.
The only approximately clear information about what and to whom we owe is the data of the special budget program 4040, which was established under the law on guaranteeing the execution of court judgments against the state. It can be applied to by people who have not executed a judgment against the state or against state-owned enterprises within six months.
UAH 4.5 billion of state debts for 160,000 judgments have been registered in this program, and the State Treasury is gradually repaying them. Already paid that year for 50 thousand judgments, this year - 60 thousand judgments.
So many? Those are small debts?
There are three priority blocks, and the first of them is still not closed - social payments. There are many of them, but they are usually the smallest. The second block - debts on salaries and the third - everything else. And here in the third - rather big sums.
Now there is enough money to close the whole social payments block during current and the next year.
And we believe that through this program we can finally close the debt issue, but for this it is necessary to pass a bill on the procedure for its financing, that currently has difficulties with moving through the Verkhovna Rada. By this law, we will regulate the payment of compensation, expand the circle of those who can apply to the program, facilitate the path to the program for those who have so-called "binding" judgments, and set a deadline: 6 months to apply for those who have old debts. We will conduct an advertising campaign - "contact". And in six months we will have a clear figure of how much we have historical debt.
And I am sure that the amount of UAH 4.5 billion is close to the real amount. Well, maybe it will increase a bit, but that will put an end to it.
By the way, the Committee of Ministers of the Council of Europe has agreed that this approach will allow us to close the historical debt in the Burmych Group. Separately, we are working with the Council of Europe to develop general measures to ensure that we no longer have thousands of such lawsuits against our country before the European Court of Human Rights.
"WE HAVE TRANSFERRED ALL TYMOSHENKO’S ARGUMENTS TO THE COURT"
The ECHR has ruled that the land moratorium violates the rights of Ukrainians and should be revised.
Yes, and we have to execute that judgment. Otherwise, at some point, the ECHR will lose patience and will start to award compensation for these judgments. Then it will be billions of hryvnias in compensation through Strasbourg for all interested Ukrainians who own agricultural land.
The Government did not appeal against the ECHR's judgment. Does this mean that Ukraine perceives the Court's arguments as correct?
I believe that they are correct.
But we still studied the possibility of appeal. A working group was set up under the Cabinet of Ministers to consider appealing the judgment to the Grand Chamber. None of the interested bodies supported such action, especially since there were no formal grounds for that in this case.
This is a very interesting judgment in general, the best written judgment in Ukraine that I have read.
In it, the ECHR evaluates this state policy of Ukraine in the context of compliance with the European Convention on Human Rights. In order to do so, the Court needed to understand all grounds on which this policy was developed. Therefore, in this case, we have provided all the arguments that exist in the state regarding the moratorium. Collected them from everywhere!
Did they turn to Tymoshenko for help?
Don't you think she has some hidden super-argument that she never made? And we passed all her public arguments to the Court.
We quoted Tymoshenko's speeches and her speeches in the Verkhovna Rada. They cited the position of farmers who gathered under the Rada in 2017, demanding the extension of the moratorium. We collected information from other political forces, speeches of their leaders and representatives. We have translated all the explanatory notes to all the moratoriums.
And it was interesting to understand where the moratorium came from. In 2001, the first Land Code of independent Ukraine was adopted. The government then advocated free land ownership, but the Communists said, "We will support your Code, but only if there is a moratorium on the sale of agricultural land for 30 years." Speaker Ivan Plyushch then said: "Well, maybe not 30, let's do it for six." Thus appeared the first moratorium for six years, which has been continued every year since.
We also forwarded the minutes of this meeting to the ECHR. As a result, the Court had all arguments in favour of a moratorium that exist in the state.
The court considered them all and ruled that the moratorium in its current form violates the Convention, violates human rights and should be reviewed.
Specific deadlines are not specified in the Court's judgment, it says that Ukraine must cope "within a reasonable time." However, it is possible to focus on the practice of pilot judgments of the ECHR, where it is considered that two years is the maximum term.
And now the state of Ukraine must execute this judgment.