IVAN LISHCHYNA: WE ARE GROWING SHARP-TOOTHED PIRANHAS THAT WILL TATTER RUSSIA IN THE ECHR 31.01.2018
Why do fighters of volunteer battalions file complaints against Ukraine with the ECHR? How do lawsuits become a part of a hybrid war? Is there a prospect in the cases Ukraine v. Russia and what evidence of the presence of Russian troops in Donbas were already collected by Ukraine?
Deputy Minister of Justice, Agent before the European Court of Human Rights Ivan Lishchyna told Ukrainska Pravda about the state of Ukrainian cases in Strasbourg.
UKRAINIAN VOLUNTEERS AGAINST UKRAINE
4,226 cases in the European Court of Human Rights are concerning the events in Crimea and Donbas. Only 257 of them were filed against Russia, 908 - simultaneously against Ukraine and the Russian Federation, and almost 3,000 – against Ukraine. Judging by such statistics, there is some cognitive dissonance: who attacked whom?
Currently, it is difficult for me to answer the question of what kind of cases these are. It is necessary to understand how the procedure takes place: the applicant lodges an application before the ECHR. The application is registered. We know nothing about it before it is communicated to us.
‘Communication’ is when the court has accepted all the documents, examined whether they are sufficient for preliminary consideration, and then sent a letter to the government with a copy of the applicant’s application.
Only from this moment, we discover that there is a case at all.
By the way, 90% of what comes to the ECHR is filtered by the Court, declared inadmissible, and is not passed further. Thus currently all we know now is a figure – 4,226 applications. We will find out more information when they would be communicated to us. If they would be.
What specific cases can we talk about now, in the fourth year of war?
There are several dozen of them. We have 55 cases against Ukraine and Russia related to the events in Donbas in 2014-2015. These are mostly complaints from Ukrainian volunteers who were taken prisoner during the Ilovaisk tragedy. They were mistreated, tortured, mostly by collaborators. However, there were also Russian servicemen, representatives of the FSB(Federal Security Service of the Russian Federation (note of the translator)), GRU (Main Directorate of the General Staff of the Armed Forces of the Russian Federation (note of the translator)) …
It seems strange that Ukrainian volunteers are complaining against Ukraine in this case.
Lawyers have such a tactic – to file applications against Ukraine as well. According to the ECHR case-law, Ukraine has positive responsibilities to protect its citizens. Of course, these volunteers do not say that Ukraine tortured or detained them. They believe that the authorities did not conduct an effective investigation into the torture, did not do everything possible to release them from captivity as soon as possible.
However, this is their position. In response, we explain what really happened: the state did everything it could for their release.
We have recently received several complaints from people who were tortured in Sloviansk in 2014, when Strelkov was there (former leader of the militants in Donbas, ex-employee of the GRU of the Russian Federation Igor Girkin – Ukrainska Pravda).
There is one case involving the killing of a person by militants in Kramatorsk, when the city was not controlled by our authorities. This application is also filed against both Ukraine and Russia regarding effective investigation.
We also sent the request to the ECHR to clarify the number of cases filed against Ukraine, against Russia and those where both states are respondents at the same time. The ECHR is yet to respond to this request.
Whether many complaints against Ukraine come from the occupied part of Donbas?
There are seven of them from people living in Donetsk. They are concerning non-payment of pensions in 2014. There are eight more cases when so-called ‘members of militia’ have lodged an application against our state for their detention during hostilities.
There were some delays in bringing them to court, issues of the legality of detention etc. All these individuals are already outside the territory of Ukraine. They were exchanged for Ukrainian hostages. After that, ‘members of militia’ complained to the ECHR.
Some experts believe that lawsuits against Ukraine are element of a hybrid war. How true is this?
Going back to figure 4,226, voiced by the President of the European Court of Human Rights, I repeat that we cannot discuss specifically these complaints now. We do not know whether there are Ukrainian citizens or Russian citizens, legal entities or individuals among the applicants, and how many of them.
However, I do have information from Ukrainian special services that Russian special services prepare such mass complaints. They force, for example, citizens who move to Russia for permanent residence to prepare applications to the ECHR against Ukraine for various reasons.
So, such work is being done. In our opinion, it is a clear violation of the European Convention. On the part of the Russian Federation, this is, in fact, a major abuse of its right.
There are also four cases against Ukraine. They were filed by relatives of people who died in the crash of MH17 flight in July 2014. Applicants are living in Germany. A German lawyer, who has ties with Russian companies, works with them.
The application alleges that Ukraine's fault was that it allowed civilian planes to fly over its territory. As for today, the judgment has not been delivered. We will see what the ECHR will say.
EFFECTIVE CONTROL INSTEAD OF OCCUPATION
Is there any example of a successful outcome of the ECHR hearings regarding Donbas for Ukraine?
There is one very important case for us that we have won – “Khlebik v. Ukraine”. The applicant was imprisoned. At the beginning of the hostilities, he found himself in a controlled area, while all the files of his case were in the occupied territory.
Khlebik's fate was to be decided by the Court of Appeal. However, the Court was not there at all at first. Besides, there was no access to materials. Khlebik was released under ‘Savchenko law’. Eventually, he happened to serve the entire term for which he was sentenced by the court of first instance, without the appeal consideration.
He complained about this to the ECHR. However, the court found that the part of Luhansk region, where the applicant's case file remained, was not controlled by Ukraine and that Ukraine had done everything in its power to renew the case file for the purposes of the appeal.
There are five inter-State cases Ukraine v. Russia related to Russian aggression in the European Court now. Were there similar precedents?
In general, the ECHR is about the cases of citizens against states. The court protects individuals from state arbitrariness. However, there is such a procedure as an inter-State complaint related to human rights violations. There have been few of them in the history of the Court – 23: five of them are our applications against Russia.
There was, for example, the case “Cyprus v. Turkey” regarding seizure of the Northern Cyprus. For us, this is one of the important landmarks.
There were two cases Georgia lodged against Russia. There is already a judgment on one of them regarding the mass expulsion of Georgians from Russia during the 2008 war. The second complaint concerns human rights violations in the territory that Russia seized during that war. It is due to be heard this spring.
Returning to the “Cyprus v. Turkey” case, it took a very long time. The judgment was made in 2001, and the award of compensation in favour of Cyprus – in 2015. Currently, negotiations on the payment procedure are in process.
This may hardly be called a positive example for Ukraine. Does it even make sense to spend so much energy and time on the struggle against Russia in the ECHR?
Listen, our main task is to establish the facts of violation of the rights of our citizens. And if possible – get maximum compensation. It is clear.
There is a very important political goal – to establish the liability of the RF for what is happening in separate territories of Donetsk and Luhansk regions and Crimea. If the court recognizes so, this will be, in fact, recognition of the occupation by the Russian Federation.
This will be a judgment of an international court, not a publication in the media or a statement made by politicians. This will not be a Ukrainian law that applies only to the territory of Ukraine. This will be a fact established by an international court, which no longer needs to be proven.
And it will be up to diplomats and politicians to determine how to use it.
By the way, the European Court does not use the word ‘occupation’. This is a term used in public international law. The ECHR has its own concept instead – ‘effective total control’.
This is of interest to them to establish the fact of such control over the territory, to determine the liability of this state for human rights violations in this territory.
PLAN A, PLAN B, PLAN C
What are the main violations on the part of Russia recorded by Ukraine during the events in Crimea and Donbas?
We have two big cases regarding Crimea and three regarding Donbas. In some ways, most of them are similar. We complain about illegal detention, torture, murder and disappearance of citizens, violation of property rights. This applies to Crimean Tatar and Ukrainian activists, servicemen.
There is also an illegal restriction of freedom of speech, peaceful assembly. In fact, a certain position was imposed on the Crimean people and their opinion was distorted.
We also argue that the RF gained full control over Crimea on the night of 26-27 February, not after a ‘referendum’ and the adoption of a ‘constitutional law’, as Russia claims. This is a fundamental position for us.
In the case of Crimea, it is somewhat easier for us to prove the fact of Russia's jurisdiction over the peninsula in the spring 2014, because even Putin himself acknowledged that the ‘green men’ were Russian servicemen.
As for Donbas, according to Russia, "They are not there". Due to facts, this is harder for us to prove otherwise, but we do it.
Is there a specific strategy?
We have selected the criteria the judges apply to recognize the facts of effective total control from the case-law of the European Court, which has been developing for a long time. The presence of servicemen of the aggressor state is a very important factor.
However, there was the case “Chigarov v. Armenia” on the other hand. The ECHR established the fact of Armenia's control over Nagorno-Karabakh without the presence of servicemen, meaning the court was not able to establish the indisputable fact of the presence of servicemen, but confirmed that Armenia controlled the political, economic and cultural space of Karabakh.
Thus, we have "Plan A", "Plan B" and "Plan C". But the main goal is to prove the presence of Russian troops in Donbas.
We collected a large volume of testimonies from people who saw Russian servicemen with their own eyes. We gathered evidence provided by witnesses, namely photos and videos and witnesses’ confirmations of the authenticity of videos from the Internet, which filmed Russian servicemen.
Can this serve as evidence in court?
Further… The Ukrainian General Staff provided us with valid Russian documents seized during the war. We have gathered all possible information on the seizure of Russian weapons. There are data from the Chief Military Prosecutor's Office – recordings of conversations of servicemen and relevant examinations that prove their authenticity.
We also have criminal cases investigated, for example, by the National Police in Sloviansk. Immediately after Girkin's departure, Kharkiv investigators carried out a great deal of work in the city.
We have witnesses who told us how the Russian Federation tried to undermine the situation in Kharkiv, Odesa, Zaporizhzhia, how the Russian emissaries distributed money, organized ‘Anti-Maidan’.
With the help of the Security Service of Ukraine and volunteer organizations, we uncovered the entire system of ‘vacationers’ and ‘volunteers’ organized by the FSB to provide personnel for ‘army corps’ in separate territories of Donetsk and Luhansk regions.
Also, we have very detailed information from the Border Guard Service about the shelling of our territory by the Russian Federation. We also turned to well-known Bellingcat online volunteers.
All this is framed by legally correct testimony given under oath. We also have information from Ukrainian groups of volunteers. Apart from all this, there is still a great amount of evidence.
At what stage is the consideration of Ukraine’s complaints against Russia? What are our chances of winning these cases?
Like any lawyer, I cautiously assess chances of Ukraine. However, it seems to me that we have done everything possible to prove that the Russian Federation controls separate territories of Donetsk and Luhansk regions.
As for the stage, the consideration has now slowed down a bit. The issue of transferring cases from the chamber of seven judges to the chamber of seventeen judges is being considered. Probably, they should have done it a year ago. But they have their own bureaucratic procedures.
We are currently waiting for response of Russia to our latest submissions with evidence. What happens further is a technical question – whether we will response to what the Russians sent to us, or we will demand consideration of the merits of these issues in an open session.
WE HAVE MORE EVIDENCE OF AGGRESSION OF THE RUSSIAN FEDERATION THAN GEORGIA HAD
Given the actions, statements, behaviour of the Kremlin and the geopolitical situation, many sceptics consider it a utopian idea to prove the presence of Russian troops in Donbass.
I personally do not consider such an idea to be utopian. As a lawyer, who takes direct part in the process, I can say that we have collected much more materials, processed them much better than, for example, Georgians did in their cases.
For comparison: Georgians provided 18 witnesses, we – already about 100. And these are only witnesses in the Donbas case. In the Crimean case, there are another 50 witnesses. The number of videos and the quality of evidence give us confidence that we will win.
It is not important for us to prove the presence of a specific John Doe with a machine gun in the occupied territories. In general, we need to prove the presence of Russian troops, Russian control over collaborating military formations, local administration, and economic control.
There is Nazarov (Sergey Nazarov, Deputy Minister of Economic Development of the Russian Federation – Ukrainska Pravda), who is actually the ‘Prime Minister of separate territories of Donetsk and Luhansk regions’. He organizes all the economic processes that take place there. He gave an interview to Вloomberg, where he actually admitted that Russia controls a part of Donbas.
Who collects evidence for the ECHR?
Lawyers of the Office. This year, we created a separate Interstate Cases Department. Before that, it was a division. There are now about ten of us including me. Plus, the representatives of the Ministry of Justice help us a lot locally. In total, about 30 people.
We will expand this Department. Now, it employs youths, who have just graduated from universities. Their eyes are shining, they want to work. They have grown into ‘sharp-toothed piranhas’. Even if I resign later, they will continue to tatter the Russian Federation. They rock!
How closely is your work related to the secret services?
We have fundamentally abandoned classified information because it does not help us. What can you do about it? Submit to Strasbourg? It is very difficult to declassify it. Therefore, we collect information from open sources.
The special services, of course, help us. Give access to databases. However, if you mean the physical protection of our people, we do not have it. We work without security.
Now, Ukraine takes the fourth place by the number of cases in the ECHR. Last year, it took the first. Isn't this a sentence for the rule of law?
Romania, Italy take places close to us (in the rating – Ukrainska Pravda). For them, this is not a sentence. Note that at some point we did have 18,000 complaints. 12,000 of them were united in the case “Burmych and Others v. Ukraine”.
Those were all the cases involving non-enforcement of court judgments. Of course, this is a violation of human rights. However, this was a rather technical violation of human rights, i.e. the state did not have enough finances to pay for certain programs.
During 2011-2013, there was an imbalance between the Parliament and the Government, when the Verkhovna Rada passed laws on additional social benefits, and the government did not allocate finances for that purpose in the budget.
As a result, a lot of Chernobyl victims, children of the war applied to courts and received positive judgments. But this has not brought finances to the Pension Fund.
I repeat, this is a violation, but, I beg your pardon, this is not a torture. The ECHR said that all these violations must be resolved. We are working on it. I hope we will resolve them in a year or two.
On the other hand, according to the information voiced by the media, more than half of seven thousand relevant cases concerning, in fact, the anti-terrorist operation. Therefore, aside from the annexation of Crimea and war in Donbas, we would have about three thousand cases.
This is a normal amount for a European country. This is kind of a normal figure for a population of 40 million.