Ukraine won the ECHR case in Crimea. Why is this important, even though Russia does not recognize this decision — explains ECHR Commissioner for Affairs Marharyta Sokorenko. An interview

Oksana Kovalenko
Dmytro Rayevskyi
Ukraine won the ECHR case in Crimea. Why is this important, even though Russia does not recognize this decision — explains ECHR Commissioner for Affairs Marharyta Sokorenko. An interview

Marharyta Sokorenko

Dmytro Vaga / "Babel"

On June 25, 2024, Ukraine won a case against Russia at the European Court of Human Rights. And it proved that Russia systematically violates various human rights after the occupation of Crimea. It was a huge job: Ukrainian lawyers had to prove every piece of evidence in detail, explain how this case differs from a similar lawsuit by Cyprus against Turkey, and for some time listen to the arguments of the Russians that the whole case is a political order of the West against the Russian Federation. Currently, Russia is not a member of the Council of Europe at all, so it actually does not recognize the decisions of the European Court. But still, this case was important. The representative of the Ministry of Justice at the ECHR Marharyta Sokorenko has been dealing with Ukraineʼs affairs in this court for 9 years and has officially represented Ukraine there for almost 2 years. Babel correspondent Oksana Kovalenko met with her and talked about this decision, why it is important despite the fact that Russia ignores it, what can be achieved at the ECHR and what other cases against the Russian Federation are being considered there.

What is an interstate case and how does it differ from others?

The European Court of Human Rights has two appeal mechanisms. The most common are individual lawsuits, when citizens or legal entities apply to ECHR with complaints that the state has violated certain rights. There is another mechanism — these are interstate lawsuits, when one state or a group of states can complain that another state violates the Convention on Human Rights.

Interstate lawsuits are also divided into two types:

  • In the first case, the state essentially acts as a representative of a specific citizen in his interests. These are exceptional cases. As far as I can remember, there have been only a few such lawsuits in the ECHR, and Ukraine also took this approach in 2014. Then it became known that representatives of the so-called "DPR" and "LPR" kidnap orphaned children and take them to Russia. So Ukraine turned to the ECHR in the interests of these children and asked the European Court of Human Rights to instruct Russia to return the children. In the meantime, let our representatives — consuls and diplomats — visit our children. The ECHR quickly — within a day — considered our request, and at night the children were brought to Ukraine by plane. The mechanism worked.
  • In the second case, most of the interstate cases are about "administrative practices of violations" on the part of another state. That is, there are systematic violations of human rights in the country, which this state tolerates, refuses to investigate, or even encourages. This is precisely what our interstate lawsuits against the Russian Federation have been about since 2014.

How did the first lawsuit in Crimea appear?

We submitted it on March 13, 2014. It was about the violation of human rights during the active phase of the seizure of the Autonomous Republic of Crimea and the city of Sevastopol. Even then we saw violations, patterns, attacks on certain categories of the population. They quickly formed a lawsuit and filed it three days before the so-called “referendum”. And in April 2014, when Russia moved its aggression to the east of Ukraine (in Donetsk and Luhansk regions), we also recorded human rights violations and constantly informed the European Court of Human Rights. This is how other interstate lawsuits arose.

Russian military during the occupation of Crimea.

Wikimedia / «Бабель»

The court established that the occupation of the Crimean peninsula began on February 27, but in our official documents the date is February 20. How important is this? Will it not interfere with those who experienced the occupation before the date recognized by the court?

The ECHR confirmed this date at a preliminary stage — when determining the admissibility of our lawsuit. And it does not use the term "occupation", but the definition within the Convention — "effective control". At the time, Russia tried to assure that it was a manifestation of the peopleʼs will, that Crimea had seceded of its own accord and joined the Russian Federation. The European Court rejected all the arguments of the Russians and pointed out that Ukraine proved that the Russian Federation seized Crimea by force and gained "effective control". On the night of February 27, the Russians seized the ARC parliament building and other administrative buildings. So Ukraine as a state was, letʼs say, immobilized from that moment on. But the ECHR takes into account the dates as early as January 2014, when Russia began to covertly build up its forces in Crimea.

Letʼs briefly (because the document has 374 pages) talk about the most important thing.

The keynote is that Russia has created a whole system of human rights violations. It is a system of persecution: someone was kidnapped and held captive; someone, unfortunately, kidnapped and killed; there is a system of brutal treatment of captives. In addition, they are persecuted for views, for opinions, for posts on social networks, for peaceful rallies. The European Court found it a proven violation that Russia forcibly granted Russian citizenship to everyone, and people could not renounce it. And those who avoided it for some time were deprived of a number of rights. There are vulnerable categories of the population (for example, prisoners), whose citizenship was automatically changed to Russian. Children who were born (or minors) were also forcibly given Russian citizenship.

A separate category of complaints was for the persecution of representatives of religions: both our Orthodox Church and Muslims. The European Court also recognized this as proven.

There was one more point, by which you — letʼs say — changed the practice of the ECHR in some way.

Yes, violation of Article 6 of the Convention on the right to a fair trial. Russia tried to show that it allegedly legally annexed Crimea, and then extended Russian legislation to its territory. We said that this is a violation of the norms of international humanitarian law, because the occupying power in the occupied territory should not change the legislation, except, for example, for security and order — such cases are exceptional.

In Crimea, as early as April 2014, judges who sided with Russia issued decisions with the inscription "in the name of the Russian Federation", but they also stamped with the Ukrainian coat of arms. We insisted that post-occupation courts could not be considered "statutory courts", the terminology of the Convention. And therefore, the decisions they make are essentially fictitious and illegal. The European Court also recognized this.

We were worried because before the ECHR there was another interstate lawsuit between Cyprus and Turkey regarding the northern part of Cyprus. Cyprus submitted a similar complaint to the ECHR, but was unable to prove that the courts in the occupied part of Northern Cyprus violated the requirements of the Convention. At that time, the ECHR noted that some judicial bodies should still function in the occupied territories in order to guarantee people at least some protection. But we proved that in our case the courts worked as punitive bodies in relation to our political prisoners. In addition, peaceful protests were banned through the courts.

Marharyta Sokorenko at her desk in the Ministry of Justice.

Dmytro Vaga / "Babel"

Are only criminal proceedings illegitimate in occupied Crimea? Or also civil ones — divorce, business disputes?

The court focused specifically on criminal prosecutions. Most likely, if there are individual lawsuits, the ECHR will study in detail each specific case and how the courts acted in it.

The court also established that Russia established a border at the place of the administrative border that arose between the captured Crimea and the mainland of Ukraine. This is also a violation of the Convention — the right to freedom of movement of our citizens. In addition, the ECHR indicated that the Russian Federation did not cooperate during the entire proceedings and did not provide information to the court.

The Russian Federation isolated Crimea from the outside world: Ukrainian authorities, international organizations, independent journalists, and observers could not get there. The ECHR also recorded that Russia immediately cut off Crimea from Ukrainian television and radio broadcasting, and Ukrainian journalists were among the first to be persecuted.

These violations of human rights are akin to crimes against humanity as enshrined in the Rome Statute. Can the International Criminal Court now take this case and look for the criminals?

These are two different jurisdictions, two different courts. The ECHR is about the responsibility of the state, and the International Criminal Court is about the personal responsibility of top management. If there is a court decision that established one legal fact, then it may be relevant to another international court. Therefore, the decision of the ECHR may be useful, but I am not a member of the team working with ICC, so I cannot say more.

I will give just one example: at the end of January, the UN International Court of Justice recognized language discrimination in Crimean schools in the case of discrimination by Russia. The ECHR took into account this decision and also recognized the violation. In addition, there were facts of attacks on Ukrainian-speaking children, we had witnesses who spoke about it. And also witnesses who said that they had to leave Crimea because they did not want to switch to the Russian language.

And what of this did not work?

The ECHR rejected one of our complaints. We talked about the murders during the occupation of the peninsula by the Russians — this is the case of the murder of Reshat Ametov and several soldiers. The European Court rejected the complaint, because in interstate cases there must be systematic actions of the offending country. And it is difficult to show systematicity with these cases, because — fortunately — there were not so many such cases. At the same time, the ECHR noted that Russia should have conducted an investigation into these facts, but it did not, and the court recognized this.

There was another ambitious aim. As part of the complaint about violation of the right to property, we stated that there was expropriation of private and state property. But the European Court rejected part of the complaints regarding state property, because it does not have jurisdiction in such disputes.

In January 2021, the ECHR considered another interstate case with a similar issue — a lawsuit by Slovenia against Croatia regarding state property. Then the ECHR also rejected the lawsuit, because the Convention on Human Rights protects the rights of people, not the rights of the state.

The ECHR also did not accept the complaint regarding the actions of the government of Belarus in the case of Pavlo Hryb, who was kidnapped on their territory and handed over to Russia. After the full-scale invasion, people were also kidnapped through Belarus and taken to Russia. Is it possible to file a complaint against Belarus?

Belarus is not a member of the Council of Europe as a country with a dictatorship, so it cannot be complained to the ECHR. And the very fact of the kidnapping of Hryb is outside the jurisdiction of the ECHR. On the other hand, he was tried in Russia. And now it has already come under the jurisdiction of the court, Pavlo Hryb was on the list of political prisoners. In addition, he had a number of diseases, and he was not provided with medical care. And we informed the ECHR about it.

Pavlo Hryb in court in Russia.

Can this be considered as torture?

Yes, and the ECHR noted that there is a system of torture and ill-treatment of political prisoners. There were several such cases.

Going back to your question about Belarus, we expected the court to dismiss the complaints against Belarus. But it was important to show the connection, how Russia acts through Belarus. We also talk about this in our full-scale invasion lawsuit. But since the ECHR does not have jurisdiction here, the responsibility of Belarus is a matter for other international courts.

Until the moment when Russia stopped participating in the meetings, what arguments they had?

One of their favorite arguments was that our statement is political and we are trying to lie to the Russian Federation, that we are controlled by someone from outside, and that these are all Western attacks on Russia. The court rejected this part. And it stated that interstate lawsuits really have an element of politics, because the states could not agree on something in the negotiation process and therefore launched legal mechanisms.

The Russians also tried to undermine our evidence base, they constantly said that something was fabricated, that some videos were fake, that the activists were managed by some American foundations.

We axe our argument with evidence: if we had a video, we looked for the journalists who recorded it, and they confirmed where and under what circumstances they did it. And so it was with every witness, every victim. We analyzed all open sources of information, especially Russian ones. And it turned out that many of the things we claimed were completely consistent with what they presented in their media.

I will tell you about another trick of the Russians, but not in this case. In the case of Donbas and the full-scale invasion, they talked against time. Sometimes they said that the judge from Ukraine was not like that, then they asked to postpone the oral hearings under various pretexts. The ECHR refused every time. So two weeks before the oral hearings on admissibility, the Russian “ad hoc” judge [Bakhtiyar] Tuzmukhamedov wrote a statement to recuse himself, allegedly due to circumstances affecting his objectivity. Well, if there is no judge, the court cannot consider the case. However, the case was considered for admissibility, but they delayed this process for 2.5 months.

The representative of Russia in one of the Ukrainian cases at the ECtHR.

European Court of Human Rights / «Бабель»

I will return to the case of Crimea. The court recognized that Russia violates human rights. How can Russia be forced to comply with the ECHR decision?

International justice is — in many ways — the voluntary fulfillment of decisions and oneʼs own obligations. Russia did not implement inconvenient decisions, even when it was a member of the Council of Europe. Therefore, so far no one expects them to implement this decision. But this is a strong argument for our diplomats, Western partners, to increase pressure. Each such decision is a part of the great strategy of isolating the Russian Federation.

For example, even after the full-scale invasion, not all of our partners recognized that the aggression actually began in 2014. We have always said that Russian aggression began in Crimea and moved to the east, and a full-scale invasion is just a new stage of this aggression. And they said that this was not officially established anywhere. Now the ECHR states that after the seizure of Crimea, the aggression moved to the east of Ukraine and Russia seized control over part of the Donetsk and Luhansk regions. So, for diplomats, these are important legal arguments.

This decision can be a good basis for other international courts, in particular for the Special Tribunal that we are trying to create.

During the year, it is necessary to submit satisfactions — demands for compensation from Russia. Is it clear how you will calculate this?

The beneficiaries are the victims who appear in this case. Therefore, we will now work to collect information, state the relevant requirements, take the experience of other countries in interstate affairs, and see what the problems were there. This is a huge job for the next year.

Marharyta Sokorenko has been dealing with cases at the ECtHR for 9 years, and her team is looking for innovative approaches. The inscription on the board in the office can be called the slogan of her team.

Dmytro Vaga / "Babel"

Is it clear what to do next? Should it be entered through the reparations register or should there be another mechanism?

The reparations register is not suitable because it is limited to events from February 24, 2022. Therefore, we are currently looking for mechanisms in parallel. This is also a difficult process within the Council of Europe. Because Russia will not pay voluntarily. Even when it was a member of the Council of Europe, it did not pay compensation to Georgia in an international case.

What other cases do we have in the ECHR and at what stages are they?

In January 2023, the ECHR found admissible the lawsuit of Ukraine and the Netherlands regarding the east of Ukraine, and in February of the same year it joined the case of full-scale invasion, which had not yet passed the admissibility stage, so it skipped one step.

But the question of admissibility of this lawsuit still had to be considered. Therefore, by the spring of 2024, we provided all information about him in writing. Now we have victims in every corner of Ukraine, and also a large number abroad. A decision on admissibility and merits is pending.

Hearing in the case "Ukraine and the Netherlands v. Russia", June 2024.

European Court of Human Rights / «Бабель»

In addition, there are two other lawsuits. One, from 2018, concerns the attack and capture of the crews of three ships of the Naval Forces in the Kerch Strait. We recently gave a position in this case — Russia illegally detained and hold them back.

And another lawsuit at the initial stage, we are waiting for the courtʼs instructions. It refers to the elimination of opponents of the regime or persons whom Russia considers dangerous. These liquidations were both on the territory of Russia and on the territory of the member states of the Council of Europe. They also were in Ukraine, so we showed the whole system. This is about the politics of extrajudicial killings. The court has several individual lawsuits that Russia has already lost. This is a somewhat innovative lawsuit, an adventurous one. But we are not alone there. Several other countries have joined as third parties.

There are still many disputes between Ukraine and Russia at the European Court of Human Rights. It will be easier for us to talk about them with your support: 🔸 Buy Me a Coffee, 🔸 Patreon, 🔸 PayPal: [email protected].