THE STRASBOURG COURT HAVE RECOGNIZED THAT TEMPORARILY OCCUPIED TERRITORIES OF DONETSK AND LUHANSK REGIONS SO-CALLED “L/DPR” ARE NOT CONTROLLED BY UKRAINE – LISHCHYNA 14.02.2018
In the judgment, the Court declared that Ukraine shall not be liable for the difficulties with the access to justice in separate territories of Donetsk and Luhansk regions. The liability for social security, according to the judgment of the Strasbourg Court, shall be transferred to the state exercising control over these territories, namely – Russia. Radio Donbas interviewed Ivan Lishchyna, Deputy Minister of Justice of Ukraine – Agent before the European Court of Human Rights (ECHR) on the content and value of this judgment.
How can such a judgment of the European Court of Human Rights be interpreted? And whether this judgment means that such a high European institution directly recognized Russia as the occupier of the uncontrolled part of Donbass?
I would not go that far yet. Now, we can say that the European Court of Human Rights has recognized that temporarily occupied territories of Donetsk and Luhansk regions are outside Ukrainian Government control. Earlier, there was a judgment in the case against Ukraine, which concerned Luhansk region, and this case concerns Donetsk region.
In fact, this is a quite important point, because the general rule, which the ECHR applies, reads as follows: "The territory that officially belongs to the territory of the state shall be considered so and the state shall be liable for all human rights violations, which take place in this area". If the European Court of Human Rights delivered a judgment that temporarily occupied territories of Donetsk and Luhansk regions still were controlled by Ukraine, Ukraine would bear responsibility for all violations of human rights taking place there.
This is the ECHR confirmation that Ukraine shall not be liable for its obligations regarding violation of human rights in this area.
Thus, in accordance with this judgment, are all claims against Ukraine on the termination of social payments and pensions for the occupied territories of Donetsk and Luhansk regions groundless now?
Not quite. First of all, the judgment concerned the specific issue of access to justice. The applicants stated that they did not receive their pensions and could not challenge that fact, as Ukraine had not ensured the operation of courts on the territory where they reside. Ukrainian courts do not operate on the temporarily occupied territories of Donetsk and Luhansk regions. And the fact that they had not exhausted domestic remedies as appropriate before applying to the ECHR they explained by this inability to access to justice.
The applicants alleged violation of the right of access to justice and their right to property in connection with the fact that they were deprived of pensions.
The ECHR declared that Ukraine did not exercise control over that territory. It found that Ukraine was doing everything possible to ensure access to judicial system in Government-controlled territory, including the opportunity for residents of temporarily occupied territories of Donetsk and Luhansk regions to apply to Ukrainian courts.
And since they did not apply to the Ukrainian court, they did not exhaust domestic remedies. The Court did not examine the case on the merits.