ECtHR Grand Chamber Declares Admissible the Case of Ukraine v. Russia re Crimea 20.01.2021
This is, needless to say, a very important decision. It is notable for a number of reasons. First, for how the Court tries to address (or not) the question of sovereignty over Crimea. Second, relatedly, for how it deals with the issue of state jurisdiction in the sense of Article 1 of the Convention and its (extra)territorial applicability. Third, for the Court’s approach to evidence. Fourth, and finally, for its ultimate findings on the prima facie existence of an administrative practice of various human rights violations by Russia.
The decision is, on the whole, a significant but not total win for Ukraine. The Court has tried to avoid pronouncing on sovereignty over Crimea – in my view, rightly so – but its avoidance can probably best be qualified as partial. On jurisdiction, the Court found that Russia was in effective control over the territory of Crimea, and that it was bound to apply the Convention not only from the moment of Crimea’s annexation but also for several weeks prior. On evidence, the Court articulated a more structured approach than in most of its prior cases. And it found the prima facie existence of an administrative practice of human rights violations by Russia for almost all of the violations alleged by Ukraine.
The Court’s findings have clear implications for other cases pending against Russia in Strasbourg, interstate and individual both, as well as for other similar instances of ‘lawfare’ – e.g. the litigation regarding Nagorno Karabakh. Politically, this is a bitter pill for Russia to swallow, but the decision is cautiously written and the pill is likely not a wholly unpalatable one – at least for now. Let’s first turn to the most difficult of all of these issues, the sovereignty dispute over Crimea, which as we’ll see permeates much of the case.
Sovereignty over Crimea and Article 1 jurisdiction
I have written previously on the blog (here and here), and with Tatjana Papic in the ICLQ, that the European Court and other human rights bodies should prudentially, if possible, avoid pronouncing on sovereignty over disputed territories, even if such issues are legally reasonably straightforward (as they indeed are with regard to Crimea). This is because pronouncing on sovereignty may well advance the cause of one of the disputing states (here Ukraine) and contribute to its overarching narrative regarding a wider dispute, but does little for advancing the cause of human rights. Indeed, doing so may even harm the cause of human rights by provoking political backlash by the losing state against the human rights body, including treaty denunciation.
The Court’s jurisprudence on Article 1 of the Convention, starting from Loizidou, which conceptualizes jurisdiction as effective overall control of a territory, makes it unnecessary for it to pronounce on sovereignty. This is because all that is required is the fact of control, regardless of whether the control was obtained lawfully or unlawfully. This simple solution is complicated, however, by some of the Court’s jurisprudence (e.g. Ilascu, Catan) which grounds jurisdiction solely in sovereign title even when the state has lost control over its territory. It is also complicated by several provisions of the Convention and its protocols that directly make a possessive reference to territory in defining a certain right – e.g. Art. 2 of Protocol 4, which provides that ‘Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.’ But such problems are not insurmountable, and the provisions can reasonably be stretched and applied (or the issue otherwise re-qualified) so as to avoid deciding on territorial title.
So what did the Court do? It immediately held that it was not necessary for it to pronounce on the legality and effects of the annexation of Crimea by Russia (paras. 237-44). In particular (244):
- the Court considers that it is not called upon to decide in the abstract on the “legality” of the Russian Federation’s purported “invasion” and “occupation” of Crimea other than by reference to the rules contained in the Convention. Nor are the applicant Government seeking a ruling from the Court on the legality per se under international law of the “annexation of Crimea” and, accordingly, of its consequent legal status thereafter. These matters were not referred to the Court and do not therefore constitute the subject matter of the dispute before it. Accordingly, they are outside the scope of the case and will not be directly considered by the Court.
Note, however, how this position is qualified – the Court is not called upon to decide in the abstract on sovereignty and will not consider the issue directly. Of course it is immediately apparent that it may do so indirectly. The Court’s first opportunity to do so was its Article 1 jurisdiction analysis, to which we now turn.
Because Ukraine was alleging the existence of an administrative practice, i.e. a pattern of human rights violations that is officially tolerated, the spatial conception of Article 1 jurisdiction was clearly the best fit for the case. But the Court’s jurisprudence, in which it has at times distinguished between territorial and extraterritorial jurisdiction as if they were somehow different in kind, complicates the analysis. Ukraine essentially argued that the Court not only had to determine whether Russia was in control of Crimea (and from what point in time), but also the nature of Russia’s jurisdiction, i.e. whether it was territorial or extraterritorial, which then leads to the preliminary question of whether Russia was at any point the lawful sovereign of Crimea. This is simply a misconception of how the notion of jurisdiction works, or should work, in the human rights context, but unfortunately it is (to an extent) a misconception that the Court has now embraced. (Another misconception that it happily did not embrace is the confusion between the notions of attribution and jurisdiction, which it now quite clearly distinguished (paras. 264, 266, 368 – see more here and here)).
Note, first, that Russia did not dispute that it was in control over Crimea after 18 March 2014, the annexation date, but did dispute that it was in control of Crimea prior to that date. The Court in that regard conducted a very sophisticated factual analysis to demonstrate that Russia did exercise effective control over Crimea even before that date – indeed, the most elaborate such analysis in human rights case law generally, far more granular, for instance, than the one in Chiragov on the control (at the time) of Armenia over Nagorno Karabakh.
Thus, the Court emphasized the doubling of the Russian military presence in Crimea in the relevant period (321), the elite status of the forces deployed which had superiority over Ukrainian forces in Crimea (322), the fact that Russia had no real reason to deploy these forces except to acquire control over the territory (324), the fact that Ukraine could provide a fully coherent account of how Russian troops immobilized Ukrainian forces (328), and statements against interest by Russian officials, including President Putin, which the Court found highly probative (330-4). Thus, it gave (333) ‘particular weight to the express acknowledgment that the Russian Federation “disarm[ed] the military units of the Ukrainian army and law enforcement agencies” and that “the Russian servicemen did back the Crimean self-defence forces”.’ The Court therefore found that Russia was in effective control of Crimea as from 27 February 2014 (335).
The Court could simply have stopped there, and said that Russia obviously maintained and further consolidated that control after 18 March, which again Russia itself did not deny, end of story. But then the Court got stuck in the issue of whether Russia’s jurisdiction before 18 March, which was clearly extraterritorial in the sense that Russia did not even claim sovereignty over Crimea before that date, was somehow different in kind from its jurisdiction after that date (338-347). Again, all the Court could – and should – have said is that it doesn’t really matter whether jurisdiction should be labelled as territorial or extraterritorial. All that matters is that the state had control as a matter of fact.
Here, however, the Court also decided to somehow address the problem that, as noted above, some provisions of the Convention expressly refer to territory. This is precisely how Ukraine wanted the Court to indirectly pronounce on sovereignty over Crimea – that, for instance, ruling on whether the setting up of a boundary between Crimea and the rest of Ukraine violated the freedom of movement “within the territory of a State” in the sense of Article 2 of Protocol 4 necessitated a determination of who the territory belongs to. Russia, on the other hand, did not want the Court to pronounce of sovereignty, directly or indirectly. And here is what the Court did:
As the respondent Government have asserted and the Court accepts, it is not for the Court to determine whether and to what extent the Accession Treaty of 21 March 2014 has, consistently with public international law, changed the sovereign territory of either the respondent or the applicant State. The respondent State further invited the Court not to enter into the determination of the nature of its jurisdiction after 18 March 2014 (see paragraph 306 above). Accordingly, the Court cannot but note that the respondent Government have not, in fact, advanced a positive case that the sovereign territory of either party to the proceedings has been changed. Furthermore, the Court also notes in this context that a number of States and international bodies have refused to accept any change to the territorial integrity of Ukraine in respect of Crimea within the meaning of international law (see paragraphs 211, 214, 216 and 217 above). As the Arbitral Tribunal observed in § 174 of its above-mentioned Award of 21 February 2020 (§ 244 above), “the effect of factual and legal determination made in the UNGA Resolutions [UNGA Resolution 68/262 on the territorial integrity of Ukraine, see § 211 above) as reaffirmed in subsequent UNGA Resolutions 73/263, 71/205, and 72/190, see §§ 212 and 213 above] depends largely on their content and the conditions and context of their adoption[, as] does the weight to be given to such resolutions by an international court or tribunal”. Nevertheless, the Court considers that, for the purposes of the present case, these acts cannot be disregarded (see, mutatis mutandis, Loizidou v. Turkey (merits), 18 December 1996, § 56, Reports of Judgments and Decisions 1996‑VI).
Consequently, for the purposes of this admissibility decision, the Court will proceed on the basis of the assumption that the jurisdiction of the respondent State over Crimea is in the form or nature of “effective control over an area” rather than in the form or nature of territorial jurisdiction.
It is very difficult to make heads or tails of this. In one breath, the Court says that it doesn’t have to decide on whether the annexation resulted in a change of sovereignty, only to then say that Russia has not ‘advanced a positive case that the sovereign territory of either party to the proceedings has been changed.’ Russia of course has advanced such a case – it undoubtedly claims that sovereignty over Crimea has ‘returned’ to it. It just doesn’t think it’s the Court’s business to say anything on the issue. The Court then refers to UNGA resolutions and other documents that reaffirmed Ukraine’s sovereignty over Crimea, saying that ‘these acts cannot be disregard’ – but again, what does this mean exactly? Is the Court avoiding the sovereignty issue, as it seems to say at the beginning of the paragraph, or reaffirming Ukraine’s uninterrupted title over the territory, as it seems to say at the end?
These two paragraphs to me at least look partly like a solution to a self-made non-problem (territorial v. extraterritorial jurisdiction), and partly as a compromise between those judges who wanted to avoid the sovereignty point entirely and those who thought that the Court should align itself with other international institutions. Either way the language used is probably ambiguous enough to avoid Russia going all out ballistic against the Court for denying its sovereignty and yet for Ukraine to claim some kind of victory in the underlying dispute. The real test of the Court’s position will come on the merits, once it deals with those rights that explicitly or implicitly have some kind of territorial reference.
Approach to evidence and administrative practice
Moving on to other issues, the decision is particularly notable for its more developed and structured approach to evidence. Thus the Court, for example, distinguishes clearly between the proof of an administrative practice prima facie for admissibility purposes and its full proof (beyond a reasonable doubt in Strasbourg-speak, which doesn’t actually mean that) that would have to be forthcoming on the merits. The Court emphasises how it can evaluate all evidence freely and holistically, while at the same time creating soft-ish rules or principles on particular types of evidence.
It’s very striking, for example, how the Court repeatedly approvingly cites the ICJ in Nicaragua on certain forms of evidence, e.g. on how reports by third parties or statements by state officials should be evaluated (222, 334, 383, 386). There is indeed a lot of reliance by the Court on a major OHCHR report, another report by the CoE Commissioner on Human Rights and various NGO reports. And there is valuable stuff on the appropriateness of drawing adverse inferences – for example:
- The Court considers it legitimate to draw a parallel between a situation where a State restricts the access of independent human rights monitoring bodies to an area in which it exercises “jurisdiction” within the meaning of Article 1 of the Convention and a situation where there is non‑disclosure by a Government of crucial documents in their exclusive possession which prevents or hinders the Court establishing the facts. After all, in both situations the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities of the respondent State. As noted above (see paragraphs 256 and 380 above), the Court may draw relevant inferences from the respondent Government’s conduct in this respect, as it has done previously in inter-State cases.
When it comes to the bottom-line findings of the existence of an administrative practice (again, a combination of a pattern of violations and official tolerance of these violations), the Court doesn’t get into the specifics of particular incidents but does broad-brush evaluations. Thus, with regard to Article 2 of the Convention the Court finds insufficient evidence of a pattern of killing, but sufficient evidence for enforced disappearances (404) and lack of investigations thereof (411). It finds sufficient evidence for violations of Articles 3 and 5 (416-9) regarding instances of detention and ill-treatment; Art. 8 with regard to arbitrary raids on private homes (449-50); Art. 9 with regard to the harassment of various religious organizations (455-9); Art. 10 with regard to the suppression of various media (465-7), but not for the intimidation of foreign journalists (470-2); Art. 11 regarding the suppression of peaceful protests (477-9); Article 1 of Protocol 1 at to the expropriation of private property generally (484-5) but not private property of Ukrainian soldiers specifically (486); Art. 2 of Protocol 1 regarding the suppression of Ukrainian language in education (493-5); and Art. 14 in respect of discrimination against the Crimean Tatars (508-10).
Legally the most interesting are the Court’s findings on administrative practice where such practice is essentially regulatory in nature and where it intersects with the question of sovereignty over Crimea. Thus, regarding Art. 6 Ukraine raises the issue of the legality of supplanting Ukrainian law and courts with Russian law and courts; the Court reiterates that sovereignty over Crimea is outside the scope of the case (426), but nonetheless finds a prima facie administrative practice, without prejudice to the merits (427-8). The Court essentially does the same for passportization, specifically the inability of many Crimean residents to opt out of Russian citizenship (437-440), and with regard to Art. 2 of Protocol 4 on the freedom of movement (500-3).
Curiously, the Court also uses the decision to communicate to Russia an alleged violation regarding prisoner transfers from Crimea to the territory of Russia proper, joining this issue with another inter-state application that Ukraine had filed in the meantime, and finding that it will decide on the admissibility and merits of this issue at the same time (443-6).
Clearly, the approach that the Court took in this case will be of immediate relevance to many of the currently pending interstate and individual cases dealing with the Ukraine conflict. The Court will almost inevitably take the same approach to spatial jurisdiction in all of the cases dealing with Crimea. It’s also almost inevitable that most individual applications dealing with Crimea will be able to get around the exhaustion of effective remedies admissibility criterion by invoking the existence of an administrative practice.
However, it’s hard to predict from this whether the Court will find Russia to also have been in control of various parts of Eastern Ukraine, which is a more difficult question of fact than Crimea. And clearly Russia has its work cut out for it on the merits of this case – whenever the Court actually gets to deciding it. Hopefully the Court will somehow manage to disentangle itself from the sovereignty question, but let’s see.
Finally, it’s worth noting that we know that the decision was made by a majority, but not by how large or small of a majority, and that there are no separate opinions, because this is ‘only’ an admissibility decision. As a matter of policy, it makes no sense whatsoever to not be explicit about the size of the majority and prohibit separate opinions in Grand Chamber admissibility cases of this kind. It would do no great violence to the text of Art. 45(2) the Convention for the Court to make special allowances in that regard for these very rare but very important Grand Chamber admissibility decisions (see also Bankovic, Behrami, etc.)
Written by Marko Milanovic