В статье рассматриваются правовые средства сопротивления вооруженной агрессии Российской Федерации на Востоке Украины и в Крыму. Европейский суд по правам человека (ЕСПЧ) – важнейший, если не единственный, институт, который может быть использован для защиты жертв российской агрессии, по мнению автора. Автор показывает, какие меры уже были приняты Украиной в этих целях. Особое внимание посвящается тем юридическим действиям, которые еще могут и должны быть предприняты для борьбы с агрессией и терроризмом (ЛНР, ДНР).
Russia’s military aggression against Ukraine, which began with the annexation of Crimea in spring 2014 and is still continuing in the armed stand-off in the Ukrainian East, gave birth to a whole cluster of universally recognized provisions of international law violations and egregious violations of human rights. Obviously, Russia’s actions, which were condemned by the civilized world, came as a shock for the government of Ukraine, which for a while could justify its impotent attempts in protecting human rights. However, certain urgent legal measures in that sphere had not been taken even a year and a half into the conflict and are not being deemed necessary today. If a parallel could be drawn between the events in Ukraine and boxing, once the country had rebounded after the aggressor’s knockdown, now is the right time for it to respond with a sledge-hammer uppercut straight to the adversary’s chin. And in so doing it is very important to take all the necessary measures to restore the rights of the war’s victims to the fullest extent possible.
How can Ukraine’s position on the legal front against Russia be strengthened and what needs to be done in order to protect the rights of the people injured in the armed conflict in Donbas and during the annexation of the Crimea?
The most effective international legal remedy, if not the only one, is the European Court of Human Rights (ECHR). In Ukraine’s situation the binding authority of the ECHR’s judgments, combined with the interim measures, prescribed by its Rules, are powerful legal and political instruments in the war against the aggressor. That is the precisely why it makes the most sense to take a look at the steps already undertaken and those that need to be undertaken through the prism of the European Court.
What has been done?
Ukraine has so far lodged 4 inter-state complaints with the European Court of Human Rights. Based on the public announcements made by the Ministry of Justice of Ukraine and ECHR press releases, the complaints are about the following. The first interstate complaint Ukraine v. Russia (Complaint No.20958/14) lodged on 13 March 2014 has to do with the events that led to the Russian annexation of the Crimea in March of 2014 and the subsequent events in the East of Ukraine up to the beginning of September of 2014. The second complaint Ukraine v. Russia II (Complaint No.43800/14) lodged on 13 June 2014 deals with the kidnapping of three groups of children in the East of Ukraine and temporary relocation of them to Russia that occurred three times over the period of time between June and August of 2014. The third complaint has to do with the son of the leader of the Crimean Tatar people and social and political activist Mustafa Dzhemilyov. And very recently the Ukrainian government announced that the fourth interstate complaint against Russia has been lodged with the ECHR and is related to the political repression of Ukrainian citizens in Crimea and the Russian Federation.
The first complaint has been communicated to the Russian government and the respondent must submit to the ECHR its objections no later than 25 September 2015. Due to the fact that this case combines complaints both on the Crimean situation (compensation claims exceed UAH 1 trillion) and that in Donbas, it is unlikely that the Court will hear the case any time soon. The scope of facts and claims is so great that a 15-year long review of the case seems to be expected. That is why it would be rational to lodge interstate complaints on particular violations of the Convention and according to the category of the occupied territory. For example, a complaint on violation of peaceful enjoyment of possessions in Crimea or the right to life in the occupied part of Donbas. I believe that such a gradation would allow to, first of all, speed up application processing in each category of cases, and secondly, to keep the respondent in check, since Russia would be obligated to submit objections frequently and in a timely manner. Moreover, this approach would be useful for calculating damages that Ukraine will claim in its interstate disputes more precisely.
According to ECHR more than 500 individual applications have already been lodged with it. Some sources indicate that the number exceeds 1500 applications. And the number of applications is constantly growing since more and more victims of human rights violations seek justice in the ECHR.
As of summer of 2015 Ukraine’s leaders systematically encourage residents of Crimea and Donbas to lodge applications with the European Court against Russia. There is a special application form on the official website of the Ministry of Justice of Ukraine that potential applicants can fill out and get free help from government sponsored legal aid centers with preparation of new applications to the ECHR. It should be noted that although delayed, such an initiative by Ukraine can become very effective in the long run. However, had that initiative been introduced a year ago, many complaints about violations of such fundamental human rights as right to life, prohibition of torture, unlawful detention, etc., would have already been communicated to the government of Russia. When preparing a complaint to the ECHR applicants should keep in mind that de jure the Crimea and the occupied Donbas are still under Ukraine’s control and so in the “respondent” section of the application “Ukraine” should be checked as well, just like in cases against Moldova and Russia. And although Ukraine derogated from some of her obligations under the Convention, the matter of these derogations has not been examined, thus, including Ukraine as a respondent (and not a third party, as preferred by our government) will become a strong argument for the applicants, especially if they have simultaneously started legal procedures in national courts and will claim damages.
What else can be done?
The government of Ukraine should stop overcomplicating the process of providing assistance to victims of the war. We can currently outline the most common violations of human rights, such as death or injury of a relative in the armed conflict in Donbas, destruction or damaging of property, forced disappearance, unlawful deprivation of liberty and/or inhuman or degrading treatment, etc. Ukraine could have posted samples of applications for such complaints online with commentaries so that everyone who deems themselves a victim could have used them for their own complaint. Via cooperation with dozens of volunteer and civic organizations born during and after the Revolution of Dignity our government could have obtained a huge volume of data about internally displaced persons, their problems and complaints in order to help them on their behalf and under their consent lodge applications with the ECHR instead of asking them to do what they have very little understanding about. Moreover, the government could have created a single portal that would accumulate all video and photo evidence of the presence of Russian troops in Donbas (military personnel, armor, internal documents of co-called DNR and LNR, etc.).
Substantial damages suffered by business in Crimea and Donbas should be posted in a separate block. The government consolidated complaints and claims of thousands of state-owned corporations in one interstate complaint and that, as mentioned above, may lead to a very long trial of the case. To avoid that Ukraine should have lodged a dozen applications from specific state corporations with clearly defined violations and claims. Such applications would not only be considered by the Court a lot faster, but they would also help form case-law on the annexation of the Crimea and the war in Donbas that in the long run would convert subsequent similar cases into clone ones and expedite their outcomes. Private business had suffered from the war equally if not greater than state-owned corporations. By the most conservative estimates damages to business as a result of the annexation of Crimea and the armed conflict in Donbas amount to millions of euros. Yet very few companies chose to go to the ECHR. Among the main reasons for not seeking compensation for damages are lack of information about the Court and its procedures, fear of consequences of legal actions and continuing profitable business with Russia and her agents. In this respect Ukraine could have clearly and explicitly explained to private business the option of going to the ECHR to get compensated for damages, create a database of such businesses and the amounts of damages they have suffered, and possibly provide primary legal aid to them. In such circumstances big Donbas businesses like Yukos in Russia (Yukos v. Russian Federation) would have significantly complicated the lives of the Russian government lawyers and seriously strengthened their legal and political positions in the fight against the aggressor.
What must be done?
There is no effective applicable law in Ukraine at this time that would provide for compensation of damages for victims of the Russian military aggression, may they be individuals or companies. There are no established procedures for expert estimation of damages, effective investigations, execution of judgments of Ukrainian courts as to property in occupied Crimea, etc. The basic laws dealing with occupied territories enacted in a rush do not meet the requirements of clarity, precision and legal certainty. That is why it is necessary for the government of Ukraine to secure the rights of internally displaced persons and other victims whose human rights had been violated legislatively. Such an approach would demonstrate to the victims of the annexation and the war that the government is actually willing to fulfill its positive obligations. It would also serve as a great argument in favor of Ukraine during the exchange of pleadings in all the cases before the ECHR that have to do with the military aggression of the Russian Federation in Ukraine.
Thus, if we go back to the analogy of the situation in Ukraine to boxing, right now the country must make an even greater effort, shorten her arm at the elbow and concentrate all the energy of the blow on the attacker, and execute one of the most powerful punches in boxing — the uppercut, or in our case — EuroUpperCourt.
Автор: Andriy A. Kristenko
Источник: http://www.ujbl.info/article.php?id=678