ACTU : European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine

Hans-Jürgen ZAHORKA

On 25 November 2014, the European Court of Human Rights invited the Russian Government to submit its observations on the admissibility of two inter-State applications lodged by the Government of Ukraine under Article 33 (Inter-State cases) of the European Convention on Human Rights against the Russian Federation. The first application concerns the events in Crimea from March 2014 and developments in the Eastern regions of Ukraine; the second application concerns the alleged abduction of three groups of children in Eastern Ukraine and their temporary transfer to Russia on three occasions between June and August 2014.

An interim measure applied by the Court in the first case, calling upon both Russia and Ukraine to refrain from taking action which might lead to violations of the Convention rights of the civilian population, in particular Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment), remains in force.

In addition to the two inter-State applications, there are more than 160 individual applications pending before the Court, lodged against Ukraine or Russia or both. More than 20 of these applications are related to the events in Crimea. The remaining applications are related to the developments in Eastern Ukraine.

The case Ukraine v. Russia (application no. 20958/14) was lodged on 13 March 2014. It relates to events leading up to and following the assumption of control by the Russian Federation over the Crimean peninsula and subsequent developments in Eastern Ukraine.

The Government of Ukraine maintain that, from 27 February 2014, Russia – by exercising effective control over the Autonomous Republic of Crimea, an integral part of Ukraine, and by exercising control over separatists and armed groups operating in Eastern Ukraine – exercised jurisdiction over a situation which resulted in numerous violations of the European Convention on Human Rights. The Government of Ukraine rely on Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair trial), 8 (right to respect for private life), 9 (freedom of religion), 10 (freedom of expression), 11 (freedom of assembly and association), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the Convention and Article 1 of Protocol No. 1 (protection of property) and Article 2 of Protocol No. 4 (freedom of movement) to the Convention.

In particular, according to the submissions of the Government of Ukraine, between March and September 2014, Ukrainian military servicemen, officers of law-enforcement bodies and civilians were killed as a result of the illegal annexation of Crimea and Russian support of separatist armed groups in Eastern Ukraine. They allege that the killings amounted to a widespread and systematic practice. They also refer to cases of torture or other forms of ill-treatment of civilians and of arbitrary deprivation of liberty. A number of Crimean Tatars were subjected to ill-treatment on account of their ethnic origin or their attempts to protect Ukrainian national symbols. Ukrainian nationals living in Crimea and Sevastopol were automatically recognised as Russian nationals and pressure was exerted on those who expressed the wish to remain Ukrainian nationals. There were cases of attacks against, abductions of, ill-treatment and harassment of journalists doing their work.

Property belonging to Ukrainian legal entities was subjected to unlawful control, namely by being taken by the self-proclaimed authorities of the Crimean Republic, this action later being validated by Russian legislation. Finally, the Government of Ukraine maintain that as a result of the new State border between Crimea and Ukraine, entry to Crimea by Ukrainian nationals was unlawfully restricted.

Following the introduction of the application on 13 March 2014, the Court decided to apply Rule 39 of the Rules of Court (interim measures), calling upon both Russia and Ukraine to refrain from taking any measures, in particular military action, which might bring about violations of the Convention rights of the civilian population, notably under Articles 2 and 3 of the Convention. The Interim measure remains in force.

The case Ukraine v. Russia II (no. 43800/14) was lodged on 13 June 2014. It concerns the abduction of three groups of Ukrainian orphan children and children without parental care, and a number of adults accompanying them. The groups were allegedly abducted by armed representatives of the separatist forces in Eastern Ukraine, on three occasions, in June, July and August 2014 respectively, and subsequently transported to Russia. In each case, following diplomatic efforts by the Ukrainian authorities in coordination with the Russian authorities, the children and adults were returned to the territory of Ukraine one day or, in the third case, five days after their abduction.

An interim measure applied by the European Court of Human Rights, under Rule 39 of the Rules of Court, following the introduction of the case after the first incident – indicating to the Russian Government that it should ensure respect for the Convention rights of the people abducted and ensure their immediate return to Ukraine – was lifted after the group had been returned to Ukraine.

The Government of Ukraine complain that the abductions and illegal border-crossings were in violation of Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment), 5 (right to liberty and security), 8 (right to respect for private life) and Article 2 of Protocol No. 4 (freedom of movement) to the Convention.

The European Court of Human Rights invited the Russian Government to submit its observations on the admissibility of both applications, Ukraine v. Russia (20958/14) and Ukraine v. Russia II(43800/14), within 16 weeks, and to comment in particular on the questions of whether the alleged violations of the Convention fall within the jurisdiction of the Russian Federation within the meaning of Article 1 of the Convention (States’ obligation to respect the rights guaranteed in the Convention), what legal remedies were available to the people concerned by the alleged violations of the Convention and whether these remedies were accessible and effective.

In addition to the two inter-State applications, in the same context, there are more than 160 individual applications pending before the Court, lodged against Ukraine or Russia or both. More than 20 of those applications are related to the events in Crimea. They concern complaints about: the deprivation of liberty of persons; the impact which the assumption of control by the Russian Federation over Crimea has had on the applicants’ right to respect for their private life, their peaceful enjoyment of their possessions, their freedom of movement; or various aspects of criminal proceedings which were resumed by the authorities of the Russian Federation in Crimea.

More than 140 of the individual applications are related to the developments in Eastern Ukraine. Most of them were lodged against both Ukraine and Russia and involve complaints about various forms of ill-treatment and unlawful deprivation of liberty. They also include cases of alleged violations of Article 2 (right to life), involving alleged wounding and disappearances. A smaller group of cases concerns the destruction of property and the impact of the hostilities on the applicants’ rights under Article 8 (right to respect for private life).

In 104 individual applications, interim measures under Rule 39 of the Rules of Court have been applied inviting the respective Government/s – of Russia and/or Ukraine – to ensure respect for the Convention rights of people deprived of liberty or people whose whereabouts are unknown. In 14 of the cases, individuals were released from detention and the respective interim measure was subsequently lifted.

Source : Libertas