RUSSIA AIMS TO CONVINCE THE ECHR NOT TO CONSIDER THE UKRAINE V. RUSSIA CASE – SAYS LAWYER 14.09.2019
Ukraine brings legal action against Russia. Has this really happened? What kind of application is this?
The European Court of Human Rights (ECHR) hears cases regarding human rights violations. There are three types of persons who can apply to the European Court of Human Rights: individuals, legal entities and states.
Today, we are talking about the case “Ukraine v. Russia” – an inter-State case under the European Convention on Human Rights, according to which in the event of available information regarding violations of the European Convention on Human Rights a state can lodge an application against another state.
What is this application about? According to media headlines, the case is concerning the occupation of Crimea.
The case commenced on 13 March 2014, almost immediately after Russia brought its troops and these troops blocked Ukrainian military units and Ukrainian authorities in Crimea, in fact, from the moment Russia began to control the territory of Crimea. From that day, human rights violations in Crimea began: the murder of Ukrainian servicemen – violation of the right to life, illegal detention of Ukrainian and Crimean Tatar activists. And such violations accumulated further on.
Ukraine's application refers to 12 articles of the European Convention on Human Rights that have been violated.
This application, which was considered by the Grand Chamber of the European Court of Human Rights on 11 September, is concerning events that took place in Crimea. The application does not require the court to qualify the occupation of Crimea or the fact of the annexation of Crimea. This is beyond the ECHR jurisdiction, as it covers only human rights violations. However, during consideration of the application, the court must determine from what moment Russia is liable for violations on the territory of Crimea. Therefore, it will identify the moment when Russia has established its effective control over the Crimean peninsula.
And this will be important when considering other cases in international courts.
Judgments of authoritative international courts - and the European Court is one of the most authoritative ones – are often referred to and guided by other international courts. This will be extremely important, because there will be a qualification by an international body of the moment when the occupation of the Crimean peninsula began.
It is important to understand that what happened on 11 September is not a hearing on the merits. It was a court hearing on the admissibility of this application. The European Court of Human Rights must first decide on the admissibility of the application, i.e. on its jurisdiction over it. Thus, we are currently talking only about the decision on admissibility, but not about the final judgment in the case. And the decision on admissibility is also yet to be made.
By the way, there might not have been such public hearings, as ones we saw on 11 September. Usually, consideration of cases takes place without them. However, as inter-State cases are of exceptional nature for the ECHR, it was decided to conduct public hearings. The court heard the arguments of both parties, and now the court will decide on the admissibility on the basis of these arguments.
You have said that arguments of Ukraine at the hearing were purely legal. What was Ukraine claiming?
Ukraine claims the violation of 12 articles of the European Convention on Human Rights. In its position it focuses on the manner in which those articles of the Convention have been violated. Right to life, right to dignity, prohibition of torture, protection of property, right to a fair trial, freedom of assembly and association… Actually, it is regarding the major part of the European Convention on Human Rights.
Ukraine focused on its argument that Russia has been exercising control over Crimea since 27 February 2014 and, as a result, Russia is liable for human rights violations. In accordance with international humanitarian law, the party exercising an effective control over the territory is liable for human rights violations there. Consequently, now it is important to determine the moment since which Russia should be held accountable for breaching the European Convention on Human Rights in Crimea. According to Ukraine, the initial date is 28 February, when administrative buildings and military facilities in Crimea were seized.
And what are the arguments of the Russian party? "They are not there"?
They claim that Russia began to exercise effective control after 18 March, when the State Duma made the decision to join Crimea to Russia. They completely reject the allegation that they were there before 18 March.
The arguments we heard on 11 September are rather strange. If the arguments of Ukrainian party were based on a legal analysis of the evidence, the practice of the ECHR and events in Crimea at that time, the arguments of Russian representatives sounded more like political and ideological propaganda which were not based on legal evidence. They used such terms as ‘fascists’, ‘coup d’état in Ukraine’. It was political, ideological, propaganda terminology. Their main argument alleged that Russia was forced to resort to such actions as the population of the Crimean peninsula was threatened by Ukrainian Bandera followers and fascists.
The experts claimed that Ukraine has presented solid evidence, while Russian arguments were unable to withstand criticism. They sounded as politics, propaganda, and, possibly, they were already opening the way for Ukraine to a positive decision of the European Court on the admissibility of the case. However, I would not be so optimistic.
It seems to me that it is the Russian strategy to turn this case into politics, ideology and propaganda.
How can this affect the case consideration?
The European Court of Human Rights is not involved in politics. This is one of the reasons why it handles so few inter-State cases. It attempts to avoid inter-State cases and decisions on admissibility of inter-State cases, because it either way involves politics.
Russia is trying to convince the ECHR that the case “Ukraine v. Russia” is purely political and propagandistic. Russian position may in some ways intimidate the European Court of Human Rights from opening a ‘Pandora's box’ and making the decision on admissibility, which could pave the way for other inter-State cases in future.