WAR WITH RUSSIA: REPORT FROM THE LEGAL FRONT 16.05.2019
How many Inter-State cases are being examined by international courts today? Why was the hearing before the ECHR in the case “Ukraine v. Russia” (re Crimea) postponed and when will the trial date finally be set? What does the court require to schedule a hearing in the Donbass case? How do the jurisdictions of different international courts differ? How may international justice help in the cases of captured Ukrainian servicemen, political prisoners Oleg Sentsov and Oleksandr Kolchenko? Why Ukraine did not carry out rotation of the ECHR judge? We are about to discuss these issues with Marharyta Sokorenko, Deputy Head of the Secretariat of the Agent before the European Court of Human Rights in the television programme "National Security Issues" (project of the Centre of Journalistic Investigations, broadcast by Chornomorska Television and Radio Company).
Valentyna Samar: We want to devote a series of programmes to reviews of the state of cases “Ukraine v. Russia” in international courts. Being on the stage of government change, we decided to find out the progress with these cases today. We know that there were two applications "Ukraine v. Russia" regarding Crimea and two applications regarding Donbass at the beginning. Then, they tried to consolidate or organize them in some other way. A hearing in the case regarding Crimea was scheduled for 27 February, it did not happen. Why?
Marharyta Sokorenko: In general, since 2014, we have filed several Inter-State cases. First, they underwent division, then – unification. As a result, we have five inter-State cases. A big one regarding Crimea should have been heard in February this year, which did not happen. The second big case regarding Donbass. And there are smaller cases: the third – Ukraine v. Russia regarding orphan children abducted and transferred to the territory of the Russian Federation; the case on Ukrainian political prisoners, which was submitted in August 2018; and the last – regarding captured Ukrainian servicemen: we remember the events of 25 November last year, when there occurred an attack on Ukrainian vessels in the Kerch Strait and the capture of Ukrainian servicemen, whom Russia is now trying to prosecute, bringing a number of charges against them.
Valentyna Samar: We will further discuss each of these cases separately. And now let us return to the case “Ukraine v. Russia” (re Crimea). In general, this practice is new for the ECHR, because, as a rule, citizens act against states in this court. Ukraine referred to the ECHR the Inter-State application “Ukraine v. Russia”. What was to be examined on 27 February? What were these hearings supposed to be? And why is it bad for us that they did not happen?
Marharyta Sokorenko: On 27 February, the first large hearing on the first Inter-State case concerning Ukraine's complaints about human rights violations in the occupied territory of the Autonomous Republic of Crimea should have taken place. The scheduled hearing was supposed to examine the issue of admissibility – whether the court could examine it; and the issue of effective control – since when the Russian Federation shall be liable for human rights violations that have taken place in the occupied Autonomous Republic of Crimea. We have our questions in this regard, because Russia's official position is that the ARC is not actually occupied – it “legally” became a part of the Russian Federation as a separate entity, referring to their agreement between the “Republic of Crimea” and the Russian Federation, which was signed after the so-called “referendum” held on 16 March 2014. Our position is that the Russian Federation gained effective control much earlier – at the end of February 2014. In particular, we are talking about 27 February, when the Parliament and Government of the Autonomous Republic of Crimea were seized. In addition, there was an active systematic seizure of military facilities, state bodies. Thus, the Ukrainian state bodies could no longer actually react, could not act in full.
These issues were to be examined by the ECHR on 27 February. We were actively preparing thereto: both Ukraine and Russia have already submitted their positions to the public hearings directly. They were submitted almost on New Year's Eve – 31 December last year. The European Court sent a copy of the position of the Government of the Russian Federation, which they prepared for these public hearings. And in three weeks, the European Court simply informs Ukraine and Russia that it decided to postpone the hearing, explaining that in the context of those complex legal issues, the large amount of information provided by the parties (not only for these public hearings, because these cases are constantly supplemented) the court itself needs to properly prepare for the hearing in order to conduct an effective investigation and deliver an appropriate judgment.
We are now waiting for the European Court to announce the final date when it will hold these public hearings. We apply to the ECHR every month and ask about informing of at least an approximate date. And we now expect that this date will be set soon. (On 15 May, the Secretariat of the Agent before the European Court of Human Rights received the letter from the Court scheduling the hearing for 11 September 2019 – ed. note)
Valentyna Samar: How unexpected was this decision?
Marharyta Sokorenko: Very unexpected.
Valentyna Samar: And what does the Secretariat of the Agent before the European Court of Human Rights think about this?
Marharyta Sokorenko: It was so unexpected for us that we did not believe it at first. We thought we translated the letter from the European Court incorrectly, or we might just overworked and misunderstood the content. We then sent several requests to the ECHR requesting to explain us the reasons for postponing, because in the first letter the Court did not even state the reasons for such decision. The ECHR replied that it needed to prepare properly. We are now waiting for a new date and, perhaps, more detailed explanations of what happened and why the Court was unable to hold the hearing. Although, in fact, the deadlines were very short between the submission of the positions of Ukraine and the Russian Federation and the hearings themselves. Positions that states submit to the Court are studied by the ECHR before the hearings so that the judges may ask clarifying questions during the hearing. And, given that we are litigating not only the fact of the time when Russia has gained effective control, but also legal issues that are not so common and not so often examined by the European Court, I think the complexity of issues raised in our Inter-State cases also played a significant role.
Valentyna Samar: Thus, we should not expect the hearings to be promptly scheduled for the big case regarding Donbass and other cases as well, should we?
Marharyta Sokorenko: By the way, before we were ready to submit the position regarding Crimea, the European Court already notified us of its intention to hold a public hearing on the Donbass case, specifying that this would happen around the end of 2019 - early 2020. However, after the information provided by the states – Ukraine and Russia (there is a list of issues regarding which the Сourt wants to hear the positions of the states), the Сourt will schedule the exact date – whether it will be at the end of 2019, or in early 2020.
Valentyna Samar: Could you please explain why Ukraine needs this. The cases of human rights violations are being examined in various international courts simultaneously. There are many episodes of human rights violation have been referred to the ECHR during the occupation and Crimea annexation. The same episodes appear in the International Criminal Court - in terms of the Rome Statute, which we have not ratified yet. In addition, the ICC is already examining the facts filed by the Crimean Prosecutor's Office and human rights organizations, which very active. And there were already five information statements. There is also the International Court of Justice, which already ordered the Russian Federation to resume the activities of the Mejlis of the Crimean Tatar People and end human rights violations, discrimination of ethnic communities. Is this the tactic of Ukraine – to apply to all courts at once?
Marharyta Sokorenko: Actually, yes. We try to use as much means as possible on the legal front to show the violations, for which the Russian Federation is liable. Why is this important? Regarding the European Court of Human Rights: the main subject of its regulation is human rights. This is important for us, because since 2014 everyone claims that there are violations, there is occupation and effective control, and the counter-argument of the Russian Federation is always the same – we are not present there (in relation to Eastern Ukraine), and there are no violations in Crimea because it was joined legally. It is important for us that the international judicial body establishes in its legal judgment a legal fact that there occurred the following situation: Crimea has been occupied since 27 February; this was annexation of Ukrainian territory by the Russian Federation; all violations that have taken place in Eastern Ukraine are the consequences of the military armed aggression of the Russian Federation.
It should be noted that each court has its own jurisdiction. The European Court of Human Rights has broader powers when dealing with human rights violations. And we have list of articles that we believe to be violated, we confirm human rights violations with evidences and continue to submit them to the ECHR.
The International Court of Justice is related only to those conventions, in the frameworks of which Ukraine could apply to this Court. Russia has not recognized the jurisdiction of the UN International Court of Justice under all conventions. In fact, there are many conventions. However, the Russian Federation made commentaries and reservations to almost every convention, claiming that it does not fall within the jurisdiction of the International Court of Justice. In particular, this concerns the International Convention on the Elimination of All Forms of Racial Discrimination and the International Convention for the Suppression of the Financing of Terrorism.
Thus, it seems that the same facts are presented, but in fact there are different details: different examination procedures, different subjects of appeals. That is, we show violations from all sides, where and for what the Russian Federation shall be liable.
Why is this first admissibility stage so important? There, the Court indicates the existence of jurisdiction of the Russian Federation on the territory of Ukraine, i.e. the existence of its effective control, due to the fact that the Autonomous Republic of Crimea was annexed by the Armed Forces of the Russian Federation. This is prohibited by international humanitarian law. This means direct military invasion on the territory of the sovereign state. That is, the legal fact itself is important to us, first of all.
Valentyna Samar: In January, Ukraine filed another Inter-State application with the European Court of Human Rights regarding the illegal violation of human rights during the capture and detention of the 24 Ukrainian servicemen and naval vessels. Two months later, Mykola Polozov, the servicemen’s lawyer, announced that individual applications would be filed. Why?
Marharyta Sokorenko: On our part, as a state, we side with the captured servicemen. In fact, we coordinate our actions with the servicemen’s lawyers. We decided to submit the Inter-State application to the ECHR on our part, the lawyers decided to submit an application on their part with their arguments, which do not contradict the position of Ukraine.
Valentyna Samar: Thus, these actions are coordinated and complementary, right?
Marharyta Sokorenko: They are coordinated and complementary. Moreover, if individual applications will be examined first, where the Court will examine in detail all the complaints raised by the servicemen’s lawyers, we will ask the Court to involve Ukraine in these cases. And we will act on the applicants’ side, i.e. we will strengthen their position. And if the judgment on individual applications is delivered first, we will be only glad of it. We are ready to be involved and to help.
Valentyna Samar: It seems that Ukraine's tactics on the legal front is as follows: to surround Russia with red flags from all sides, applying all existing conventions, international acts and bilateral agreements.
There are already six positive judgments in international courts, mainly the so-called "investment arbitrations", i.e. those that were created on the claims of Ukrainian companies – “Oschadbank”, NJSC “Naftogaz of Ukraine” under the Agreement between the Cabinet of Ministers of Ukraine and the Government of the Russian Federation on Encouragement and Mutual Protection of Investments.
The International Chamber of Commerce satisfied “Oschadbank’s” claim regarding compensation for damages. These damages were estimated at 1 billion 300 million dollars, and we received a detailed response to our request from the “Oschadbank”, which will be published on the website of the Centre of Journalistic Investigations. In this response, the bank's lawyers tell how they are going to collect these funds.
There are also positive decisions in favour of 16 companies of the “Privat Group”. And we know that Ukrainians applied with many individual applications to the European Court of Human Rights. Are there already any judgments on them, especially on those concerning Crimea, Donbass and human rights violations in connection with Russia's armed aggression?
Margharyta Sokorenko: There were yet no judgements where alleged violations were established. Such cases are communicated to Ukraine since 2015, mainly related to the events of 2014 in Donbass. That is, these were mainly complaints of relatives or applicants who had been held captive or released from captivity, concerning their capture, inhuman or degrading treatment, detention, etc. However, so far there are no judgments on such complaints. We are waiting for a judgment. We are now responding to the applicants' positions. These are the cases filed against two states – Ukraine and Russia. The Russian Federation says it has nothing to do with it. This all happened on the territory of Ukraine.
There are also cases regarding the Crimea. They were filed in 2015 and 2016. This is a small group – only six cases were communicated. We submitted our positions as well. They concerned the March 2014 violation of the rights of journalists and activists, taken into captivity by the "self-defence groups of Crimea". Captives were then either handed over to the servicemen of the Russian Armed Forces or were under the control of those people we later saw in Donbass. These cases are confidential, given what is stated in these applications.
Valentyna Samar: Do you mean that the names of the applicants are not mentioned?
Marharyta Sokorenko: The names of the applicants may not be mentioned, and the documents confirming the application are confidential. However, there are judgments on them.
There are only a few judgments concerning events related to the occupied territories. These are “Tsezar and Others v. Ukraine” – a case filed by retirees for non-payment of pensions in the occupied eastern territory, and “Khlebik v. Ukraine” – for the failure of Ukrainian courts to examine the applicant's appeals against the sentence due to the fact that the files remained in occupied Luhansk. In both cases, the European Court established that there is indeed an objective situation of lack of control over these territories by Ukraine. The Court did not ask about the causes of this situation, although we described it in detail, because only Ukraine was the respondent there. On the part of Ukraine, the Court did not find any violations, because Ukraine, in the opinion of the Court, made all effort to remedy the situation.
Valentyna Samar: Marharyta, can you explain what is happening with the applications of Oleg Sentsov and Oleksandr Kolchenko? They were recently returned the status of urgent, but so many years have passed! Sentsov even made bitter remarks, sending his regards to the ECHR. Why are the cases not being examined?
Marharyta Sokorenko: Last year the ECHR informed us that there are two cases “Sentsov v. Russia” and “Sentsov and Kolchenko v. Russia”. We immediately informed the European Court that Ukraine has to be involved in these cases as a third party. Last month, we sent Ukraine's position on the first case concerning detention of Oleg Sentsov, when he was detained in 2014 and then sent to Moscow. Now we are waiting for the Court to give us time to comment on the second case. Why did it take the European Court so long? I do not know.
Valentyna Samar: Is there new information regarding this strange situation with Ukraine's determination of candidates for the position of the ECHR judges? Simply put, Ukraine did not submit their list. Will this affect our applications and cases?
Marharyta Sokorenko: Ukraine had to submit a list of candidates on 6 December and it did not.
Valentyna Samar: Whose fault was that?
Marharyta Sokorenko: This was caused by the fact that it was necessary to amend the presidential decree on the competition. We were not involved in dealing with this presidential decree. We learned about its publication on the website of the Presidential Administration only from the media. As for the effect of such failure: the term of office of a Ukrainian judge expires in April. And the fact that we did not nominate candidates does not mean that the examination of these cases will stop immediately. Pursuant to the Rules of the European Court, according to the Convention, the judge representing a state shall hold office until replaced. Therefore, until a new judge is elected, the judge who currently represents Ukraine continues their work.