IVAN LISHCHYNA: "I HAVE ONE POLITICAL AMBITION – TO END THE CASES REGARDING DONBASS AND CRIMEA" 25.03.2020
"This is my job –to be the ‘Devil's Advocate’ (he smiles – LB.ua). Sometimes I even see certain human rights violations, but my task is to win the case. For example, I submit information on non-exhaustion of national remedies. Sometimes I even win. I cannot say that my position completely coincides with the position of the state. However, I am an advocate, I work for my client," – he says, answering the question whether his personal position always coincides with the position of the state.
From 2002 to 2008, Lishchyna worked in the ECHR Secretariat. In 2015, as an advocate, he filed complaint with the Court regarding the seizure of property of the Charitable Organization "Fund "Crimea".
"Currently, it is important to establish systemic gross violations of human rights, as well as confirm the occupation of part of Donbass and the aggression of the Russian Federation in Crimea. When the ECHR finds the cases admissible, or admissible in any part, it will raise the issue of compensation for us", - Lishchyna notes.
It was planned that the ECHR would decide on the admissibility of the application regarding Crimea by the end of the year. In addition, the Court had to resolve the issue of effective control over Donbass, i.e. control of the situation in the occupied territories, by the end of 2020. However, such predictions were made before the start of the coronavirus pandemic, which made the ECHR closed for the period of quarantine.
The number of complaints filed with the ECHR by officials during the times of Viktor Yanukovych, Ukraine's involvement in the trial on flight MN-17 crash and the Court judgment on lustration in Ukraine – read in the interview with Ivan Lishchyna.
"UKRAINE IS "PREGNANT" WITH LAND REFORM"
Nataliia Shymkiv: Currently, Ukraine takes the third place for the number of complaints filed with the European Court of Human Rights. Today, the ECHR is considering 8,850 cases to which Ukraine acts as the respondent. How many judgments have been executed in the last year?
Every time I hear this question, I ask: what do you mean by "executed "? Funds paid? If so, we have executed all the cases.
Viktoriia Matola: What is the exact number?
Last year, the ECHR issued almost 109 judgments recognizing violations (of Ukraine – LB.ua). In 65 of them, the funds were fully paid, and in 44 they should be paid this year. There are no problems with payments under ECHR judgments. Since 2016, when I took this position, this issue was resolved. As for the payments themselves, their amount last year made a little more than 44 million hryvnias.
V.M.: What is the dynamics of payments? Is this amount increasing or, conversely, decreasing?
Now, the amounts are lesser than in 2012-2016. However, it is very difficult to talk about any positive changes in Ukraine. Therefore, everything really depends on the work of the ECHR. There are some cases that the court is simply trying to get rid of, because they have no resolution in terms of law. For example, the case “Burmych v. Ukraine” (the case unites more than 12,000 court judgments not executed in Ukraine– LB.ua). The ECHR has stopped hearing such cases, but may resume the proceeding at any time. The court gave Ukraine two years to execute these judgments. This period has already passed.
Another important judgment of the European Court of Human Rights is in the case “Petukhov v. Ukraine” concerning mitigation of the system of life sentences. The second judgment regarding the applicant was taken last year. We have prepared a bill to take into consideration the comments of the ECHR and to implement a system for reviewing life sentences.
In Ukraine, there is a major problem related to the execution of judgments concerning introduction of systemic changes. This is true not only for us (among the Member States of the Council of Europe – LB.ua). However, taking into account the general statistics, only Ukrainians, Romanians and Russians are on the same level in terms of the number of problems that “reach” Strasbourg. In fact, there is no life area not covered by the ECHR judgment. Last year, we closed 443 judgments in the Committee of Ministers of the Council of Europe (the Committee of Ministers of the Council of Europe monitors the execution of ECHR judgments; if a country solves a problem pointed out by the ECHR, the Committee closes it – LB.ua).
V.M.: How many cases do still remain under consideration?
589; for comparison: when I took this position, their number was 1052.
V.M.: How did you manage to reduce this number?
Due to systematic cooperation with the Committee of Ministers of the Council of Europe. Previously, this issue was dealt with only at times of the CMCE sessions. I also did not know how it worked. We learned with the team together. First of all, we “cleaned up” old cases. For example, only in 2019 we managed to close the enforcement of “Sovtransavto Holding v. Ukraine”, the first ECHR judgment against Ukraine was in 2002. This year, I am unlikely to surpass my achievements of previous year, as the easiest cases have already been closed.
V.M.: What changes do you suggest to the Parliament in order to the ECHR judgments were executed?
The main problem today is the land moratorium.
Ukraine is "pregnant" with land reform. It is necessary to release agricultural lands to the market.
I think that this problem, including the case “Zelenchuk and Tsytsiura v. Ukraine” (the Court recognized the land moratorium as a violation of the human right to dispose of one's property – LB.ua)), will be partially resolved by the adoption of relevant legislation.
Strasbourg also points out the conditions of detention of prisoners in Ukraine. On the one hand, everyone understands that this is a real problem. On the other hand, it is very difficult to get the Verkhovna Rada to allocate funds for the improvement of detention conditions. There are also problems with the execution of judgments on the payment of pensions for internally displaced persons.
And there are hundreds of such cases. I call it ” dancing on rake” – a general systemic don't-care attitude.
The issue of social benefits is related to the lack of funds in the budget and Soviet legislation, which links social benefits to the minimum wage. For example, the legislation on Chernobyl victims includes dozens of different benefits. The budget will not be enough to pay them in full. However, no one wants to reduce these payments, because this will lead to a social explosion. And the Constitutional Court, which has repeatedly considered similar issues, still applies Soviet principles, believing that social and economic rights have the same weight as political and civil ones. Although, in reality social rights mean how much the state is willing to spend, as opposed to the right to life, which must be guaranteed by the state unquestioningly.
"IN UKRAINE, THEY TRY TO MAKE A POLITICAL PROMOTION FROM FILING COMPLAINTS WITH THE ECHR"
V.M.: How many complaints filed by officials of Yanukovych's team and Yanukovych himself are under consideration before the ECHR?
I only know about the case of Aleksandrovska (ex-deputy of the Communist Party of Ukraine Alla Aleksandrovska – LB.ua) and the mayor of Sloviansk (Nelya Shtepa – LB.ua).
V.M.: And Yanukovych, Yefremov?
I have not seen any of their complaints. I do not know about any case until the European Court communicates it to the Government of Ukraine. The ECHR asserts that it is considering more than 9,000 cases against Ukraine. I do not see them. We receive about 300-400 per year. If the case is not communicated, it means that the ECHR may not consider it or postpone it. I may not know the reasons either. In Ukraine, they try to make a political promotion from filing complaints with the ECHR.
V.M.: In February last year, the lawyers of those killed on the Maidan announced their intention to appeal to the ECHR against Ukraine because, in their opinion, the state does not comply with the European Convention, in particular with the right to prompt and effective investigation and trial. Is there such complaint? Has the trial started?
There are several such cases. There are, in particular, complaints under Articles 2 and 3 (of the Convention for the Protection of Human Rights and Fundamental Freedoms – LB.ua) – the right to life and the prohibition of torture, as well as illegal detention. Ukraine's position is that there were violations, but the relatives of the dead and injured received compensation. We believe that such cases should be closed, but the ECHR will have the last word. In addition, some of the complaints concern the effective investigation of the activities of perpetrators. These cases have been communicated, but judgments have not been delivered yet.
"NO INDIVIDUAL (CRIMEAN) CASE HAS BEEN CONSIDERED BY THE ECHR YET"
N.Sh.: Regarding complaints about the events in Donbass. According to the ECHR Secretariat, their number is approximately 5,590. In 4,500 of them, the defendant is Ukraine, and in only 40 complaints – Russia. Another 1,050 complaints were filed simultaneously against Ukraine and Russia.
This is exactly what I wanted to say. If we subtract these cases from the total amount of complaints, it turns out that there are 3.7 thousand cases against Ukraine. This is close to Italy, for example.
N.Sh.: Still, the distribution is slightly different among the complaints regarding Crimea: out of about 900 complaints in the register, only 10 were filed against Ukraine, 770 – against Russia, another 120 – against both states. Why is there such a difference, given that in both cases Russia is the occupier?
These statistics are compiled by the ECHR Secretariat. I have not seen any specific cases. There have been no individual cases pending before the European Court of Human Rights, even in relation to the Charitable Organization Fund “Crimea”, which I filed in 2015 as an advocate (the Fund's property was seized after the occupation – LB.ua).
Regarding Donbass, there were a small number of cases related to the payment of pensions. They are consolidated in the case “Tsezar and Others v. Ukraine”. However, the applicants have not exhausted domestic remedies (the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken – Art. 35 of the European Convention). Some complaints are related to the destroyed property in Donbass. I had the opportunity to read one such application. However, the applicant also has not exhausted domestic remedies. Thus, it is likely that the case will follow Tsezar's footsteps.
Another quite large category of cases is the complaints of volunteers and servicemen of Ukrainian Armed Forces captured into captivity in Ilovaisk or in other circumstances. There are complaints against Russia regarding illegal detention, the conditions of detention and torture. There are three categories of complaints against Ukraine: insufficient efforts to release captives, insufficient efforts to investigate the circumstances of captivity, and improper planning of the military operations, which resulted in significant casualties. We support the applicants in their claims against the RF, but also explain why Ukraine is not to be blamed for these violations.
V.M.: Is it true that Russia often uses migrants from Donbass, who left for Russia, to write complaints to the ECHR against Ukraine?
We are examining the circumstances of possible Russian interference (in the filing of complaints to the ECHR by Ukrainians – LB.ua). We have passed these materials to the Prosecutor General's Office of Ukraine. If these facts will be confirmed, we will use them.
For example, there is the applicant's case concerning the destroyed property. At first, her interests were represented by a Ukrainian lawyer. At the stage of communication there appeared a Russian lawyer – the former member of the State Duma from the Communist Party Dmitry Agranovskyi. It was interesting to read about him on the Internet.
N.Sh.: How many cases has Ukraine filed against Russia concerning the events in Donbass?
Five Inter-State applications Ukraine v. Russia are currently being considered in respect of human rights violations in Crimea and Donbass. In particular, capture of Ukrainian servicemen, detention of political prisoners, transportation of orphan children from uncontrolled territories of Donetsk region in Russia. In fact, these are parts of the so-called ‘big’ Donbass and ‘big’ Crimean complaints.
"UKRAINE FILED ONE CASE REGARDING ALL POLITICAL PRISONERS"
N.Sh.: You mentioned servicemen who were released in September in the framework of the “35 to 35” exchange. The FSB (Federal Security Service) recently suspended operational case against them in Russia. What does go on with this case in the ECHR today?
We complained about the illegal capture of servicemen, their detention, which violated the right of the servicemen to life, freedom from torture, personal freedom. The Court applied Rule 39 of the Rules of Court (an indication of the need to take certain provisional measures – LB.ua). I think, this was one of the reasons why they were treated more or less normally, in particular, they were provided with medical care. The case is still pending.
N.Sh.: What about political prisoners?
Ukraine submitted one case regarding all political prisoners. It is on the same stage as the case concerning Ukrainian naval servicemen. It concerns five political prisoners: Emir-Usein Kuku, Stanislav Klykh, Volodymyr Balukh, Serhii Lytvynov, and Oleg Sentsov. We also filed a complaint to apply Rule 39. Everyone except for Emir-Usein Kuku was returned. By the way, I am surprised that Russia is trying to provide some information on this case, despite the fact that the ECHR has not delivered a judgment in it.
N.Sh.: Will you file new complaints concerning those released from “LNR/DNR” captivity in December last year?
Yes, we will surely file them. This is not about new cases. This is about supplementation of the application regarding Donbass with additional data. The Prosecutor General's Office of Ukraine is collecting the necessary testimonies (of former captives - LB.ua). We will pass them. In addition, we will supplement the materials on Klykh and Karpiuk, and others ready to testify.
N.Sh. What about those who were taken prisoner in the occupied territories?
Such materials are in the ‘big Donbass case’. In fact, the rights of all those residing in the occupied territories and detained by members of the so-called “LPR/DPR” are automatically regarded as violated. We monitor and report on such facts to the ECHR.
V.M.: What compensation does Ukraine demand from Russia for Crimea and Donbass?
At the stage when the ECHR decides on the admissibility of applications, compensation is not in question. Currently, it is important to establish systemic gross violations of human rights, as well as confirm the occupation of part of Donbass and the aggression of the Russian Federation in Crimea. When the ECHR finds the cases admissible, or admissible in any part, it will raise the issue of compensation fore us.
V.M.: Have you managed to hear that Russian troops are present in Donbass and Crimea at least in one case?
In the case “Khlebik v. Ukraine”, the European Court stated rather softly that Ukraine is not responsible for the currently occupied territory of Donbass. There is a phrase "the applicant did not complain about other states that may be responsible for this territory".
We are looking forward to the second judgment on seizure of a part of Georgia in 2008. It is interesting to get to know the ECHR opinion thereof, because the situation is very similar to the occupation of Donbass. However, the troops entered Georgia openly, while in Eastern Ukraine - covertly. In addition, the issue of admissibility of the complaint regarding Crimea will be an important point for us. They promise that this judgment will be delivered by the end of the year. I hope it will be in our favor.
V.M.: This only refers to the issue of whether the ECHR is entitled to deal with this complaint on the merits, right?
Yes, this is the first step, but it is very important. In case of Georgia, for example, the ECHR has postponed the issue on Russia's liability to the stage of case consideration on the merits. We hope that we have sufficiently substantiated the need of establishing effective control by Russia before the ECHR. We are also looking forward to the hearing concerning Donbass. They promise to hold it by the end of the year as well.
V.M.: Can the ECHR be an instrument of influence on Russia, given that the latter even refuses to comply with its judgments? And is it possible to resist Russian aggression in this way?
Obviously, we cannot liberate Donbass or Crimea by a judgment of the European Court of Human Rights alone. Can we get significant funds, for example, under the judgment of the Arbitration Institute of the Stockholm Chamber of Commerce in 2018 regarding “Gazprom” (“Naftogaz” was awarded USD 2.9 billion – LB.ua)? Also no.
It is important, I repeat, to establish the fact of occupation by Russia in the international court, as well as to help the citizens to protect their rights. This is not our objective to receive billions of compensation from Russia through the ECHR. The ECHR is not suitable for this.
If the ECHR will examine the case and decide in favor of Ukraine, this will mean that it will no longer be necessary to prove that Russia is an occupier. This will be accepted as fundamental truth. This will also facilitate the affirmation of individual claims of citizens and companies against Russia in both the ECHR and investment arbitrations.
"CURRENTLY, UKRAINE DOES NOT ACT IN THE CASE (REGARDING THE MH17 FLIGHT) EVEN AS A THIRD PARTY"
V.M.: Relatives of the victims of the MH17 flight filed the application with the ECHR. Was Ukraine involved in this case possibly as a third party?
Currently, Ukraine does not even act as a third party in this case. There is a complaint against Ukraine of several applicants who were relatives of the dead German citizens. They filed the application, alleging that Ukraine did not close the airspace over Donbass, which, they believe, led to the death of their relatives. Although, they have not applied to any national bodies: they did not turn to the police in Ukraine and did not file lawsuits in Ukrainian courts. They explained their position by saying that they believe that there are no remedies in Ukraine – neither the courts nor the police. Therefore, they will not apply. This is not position that the ECHR will support.
V.M.: What is Ukraine's position on such allegations?
Our position remains the same: the violation did not occur, given the fact that Ukraine was not knowledgeable about the existence of air defense systems in the occupied territories, which could reach a level of more than 9.75 km above the ground. After the MH17 crash, Ukraine completely closed the airspace over Donbass.
V.M.: What role does Ukraine play in the case of Vitalii Markiv, who was convicted to 24 years of imprisonment in Italy?
Relatives of the dead journalist (Andrea Rokkelli, died in Donbass in May 2014 – LB.ua) filed civil lawsuit in Ukraine. There is a decision of the first instance court. A pretty weird one. The fact that Markiv allegedly committed a crime was acknowledged, and the claim against Markiv and Ukraine as joint defendants for compensation in the amount of 54 thousand euros was satisfied. The case is on the stage of appeal.
I do not know where to start to explain that this decision is illegal in its essence. One country cannot condemn another without the consent of another country. There is a rule of judicial immunity. As for Markiv, the court ruled on the basis of several fake Russian media reports and photos from a phone taken a few days before the journalist's death. And these people teach us how to live?! I cannot imagine such sentence in the Ukrainian court.
V.M.: Can Ukraine somehow influence this situation?
We totally support the position of Vitalii Markiv. We have contracted a large Italian law firm that deals with this case, and we also involve experts in international law. We also provide all the evidence to release Markiv. Interaction with the Italian authorities is in process, where my area is legal support.
"WE PROVED THAT UKRAINE HAD REASONS FOR LUSTRATION"
V.M.: The ECHR found a violation of the rights of five former Ukrainian officials dismissed under the lustration law adopted immediately after Euromaidan. Ukraine also lost the appeal in the Grand Chamber. In general, how many complaints regarding lustration are currently in the ECHR?
We have communicated on ten cases, while activists say there were more than 130. I think that after the judgment in case “Poliakh and others v. Ukraine” the number of complaints will increase significantly.
V.M.: What is your position on the lustration application?
There is the ECHR judgment, which is quite reasonable. A great advantage is that we proved that Ukraine had grounds for lustration.
The European Court of Human Rights recognized that in 2014 Ukraine had right for lustration. In addition, the Strasbourg Court did not recognize that the whole law violated human rights. The ECHR found that the lustration of officials on the basis of cooperation with the communist regime was inconsistent with the Convention. Given the fact that a lot of time has passed, there shall be no fear that the fact of person’s previous affiliation to the Communist Party could affect the development of democracy in Ukraine.
The court also ruled that in the case of lustration, a narrow list of officials who could be aware of certain violations could be identified. All other officials had to be verified individually. The law on lustration stated three grounds for its application: Yanukovych's seizure of power, human rights violations during the Maidan, and corruption. If the person is not found involved in these violations during the verification, he or she cannot be subjected to lustration.
It is very important that the ECHR did not require the law on lustration to be repealed, but advised to establish a system of effective protection. If the decision on lustration remains in force, this also constitutes violation. Therefore, we are preparing a draft law to amend the law on lustration.
"THIS IS MY JOB –TO BE THE ‘DEVIL'S ADVOCATE’"
V.M.: In April last year, you called yourself ”porokhobot” [active supporter of the President Poroshenko] in the article for Yevropeiska Pravda. I quote: “Before I write what I want, I have to make a disclaimer: I am “porokhobot”. I consider Poroshenko to be the best president for all the years of existence of modern Ukraine, the first president I did not feel ashamed for and for whom being a Ukrainian meant being a winner. I voted for Poroshenko, and his leaving makes me sad”. How do you work with this position in the new Government?
I have my red lines – namely the relationship with the Russian Federation. The Government and the new power, in particular the “Servant of the People” (“Sluga Narodu”), have not yet passed them. I was interested in whether the attitude to the cases submitted against Russia with the ECHR would change in any way. So far, I receive all support from the Minister (of Justice – LB.ua), the Office of the President and the Prosecutor General’s Office. My office makes sense in the context of these cases.
V.M.: Who offered you to remain on the post?
The Minister Denys Maliuska. I warned that if I feel someone start tying my hands or something, I will just quit. He agreed. I actually work differently in this Government than in the previous one (Groisman's Government – LB.ua). And I will say that it is actually more interesting for me now.
V.M.: How does this Government differ from the previous one?
Organization, system, freedom. I have goals that I have to achieve. And I decide myself in what ways to do so.
V.M.: Does your personal position and position as a lawyer always coincide with the position of the state you need to defend?
This is my job –to be the “Devil's Advocate” (he smiles – LB.ua). Sometimes I even see certain human rights violations, but my task is to win the case. For example, I submit information on non-exhaustion of national remedies. Sometimes I even win. I cannot say that my position completely coincides with the position of the state. However, I am an advocate, I work for my client.
V.M.: Do you have political ambitions?
I have one political ambition – to end the cases concerning Donbas and Crimea and to leave with dignity.