On March 13, 2014, prior to Russia’s fake referendum in Crimea, Ukraine lodged the first of many actions against Russia in the European Court of Human Rights. The dispute focused on alleged violations committed by Russia while its troops controlled Crimea.
It was followed by two more disputes regarding the abduction of Ukrainian orphans and children without parental care on three occasions, as well as a case about the detention of Hayser Jemilev, the son of Crimean Tatar leader Mustafa Jemilev.
Since then, some 160 individual cases against Russia or Ukraine, or both, have been filed and are pending in the European court. Such disputes are generally considered to be measures of last resort after diplomacy fails.
“Regarding the Crimean cases, this is the very first time since the Second World War that the court has had to deal with the issue of annexation in the framework of an inter-state dispute,” Stanislav Shevchuk, a former ad hoc judge of the European Court, told the Kyiv Post.
Ukraine and most other nations do not recognize Crimea as a part of the Russian Federation.
“Ukraine relies on the decision by its Constitutional Court on March 14, 2014, rendering the so-called Crimean referendum illegal,” Shevchuk says. “Given the recent statement by (Russian President Vladimir) Putin calling the annexation of Crimea a ‘special forces raid,’ there is no room left for doubts as to the genuine motives of Kremlin.”
Regarding Crimea, a key problem for Ukraine will be gathering evidence, particularly in cases of human rights violations.
“The outcome of a dispute will be closely linked to the quality of evidence provided by the parties involved,” Shevchuk says. “Although Crimea has been transformed into a military base and loaded with modern military equipment and FSB agents, Ukraine still has to meet the burden of proof.”
As plaintiff, Ukraine must collect testimonies from victims, witness statements and reports from independent international organizations in order to provide proof of human rights violations beyond a reasonable doubt. The court can also assign a fact-finding mission to Crimea to become better informed, as it did in disputes between Georgia and Russia.
Shevchuk says that the process of making a case should be as transparent and impartial as possible. “Any instance of fudging evidence would be used against Ukraine,” he warns.
According to Shevchuk, the cases of Crimea and the so-called “people’s republics” should also be clearly differentiated. Donetsk and Lugansk oblasts have not received any recognition as territories separate from Ukraine. Despite all of its efforts, Russia has not succeeded in transforming these regions into analogues of Transnistria.
“Obviously, what is going on in eastern Ukraine is no longer an anti-terrorist operation, it is Russia’s war against Ukraine,” says Shevchuk. “Thus, the court will face a serious challenge balancing the necessary use of force, a standard set up under the European Convention, and de facto armed hostilities. According to Article 2 of the European Convention on Human Rights and the Court’s practice … any use of force that results in the loss of life must be absolutely necessary and carefully planned, and a state should abstain from any actions likely to endanger lives unnecessarily.”
Natalia Sevastyanova, a former representative for Ukraine for the European Court of Human Rights, says that it’s too early to comment on the enforcement of any future rulings by the court. “At this stage, any such comments would be inaccurate, as the time frame of the court’s considerations and outcome of the case are vague,” she says. “However, I would like to emphasize that the enforcement of the European Court’s decisions is an obligation of the High Contracting Party.”
Shevchuk is wary.
“On one hand decisions of the court should not be underestimated, as they form an international policy regarding an aggressor’s actions,” he says. “On the other hand, if Russia refuses to enforce these decisions, nobody will be able to force it. The only meaningful option will be to exclude Russia from the Council of Europe. However, this is a political issue. I believe many would say the best way to cultivate Russia’s democratic values is to retain its membership in the European Council.”
Regarding Ukraine’s own practice of not enforcing rulings by the European Court, Shevchuk believes this problem will be resolved when the agencies responsible for enforcement concentrate on obligations under the law over those in their respective manuals.
“If Ukraine was a developed democracy instead of centralized populist autocracy, everything would be different,” he says. “Democracies are not fighting with each other. They are pursuing the very same goals for the improvement of people lives and the protection of rights and freedoms.”
Overall, the ECHR has rendered one pilot decision (Ivanov vs. Ukraine) and about 10 quasi-pilot decisions against Ukraine, drawing the government’s attention to systematic problems within its legal system. None of the penalties have been fully implemented.
According to the budget law, the Cabinet of Ministers now has the right to restructure the total amount, Hr 7.5 billion, owed by Ukraine to plaintiffs according to the European Court by means of a 10 percent partial payment and by issuing government treasuries for the rest of the sum with 3 percent annual interest. In Sevastyanova’s opinion, this will help improve the situation.
Shevchuk believes paying compensation is not enough. In his view, much more needs to be done, beginning with legal education and ending with an independent judicial branch.
“Before its implementation, judges were applying the reasoning of European court in a very formalistic manner, as a persuasive argument to make their decisions look more significant,” Shevchuk says. “Now, the law on the reinstitution of trust in the judiciary makes a judge subject to scrutiny if a judgment he has rendered is in violation of the European Convention on Human Rights … European values are quasi-constitutional and universal. A judge cannot interpret rule of law at his own will.”
“The 23-year history of imitating democracy, sovereignty, independence, including the independence of the judiciary, cannot last forever,” Shevchuk says. “People started Maidan because they lost trust in governmental institutions. Now that a political nation has formed, it is high time to create new institutions, which can’t be achieved with the simple rewriting of laws. This is a question of moral responsibility.”
