Russian Federation has invaded and occupied Crimea in the early spring of 2014. After Russian troops established effective control over the Ukrainian peninsula, Crimea turned into what could be called a space of the experiment. Russia has been using this space to test the patience of the international community and its military ambitions. Russian authorities have also been improving methods of their repressive machine and persecuting critics of the occupying regime. Since the occupation of Crimea, Russia has been conducting blatant violations of fundamental human rights, war crimes, and crimes against humanity. For the period from 2014 to 2016, Crimea faced a wave of enforced disappearances. They targeted critics of the occupying regime as well as those who were believed to be those critics.
The term “enforced disappearance” is quite unusual for Ukrainian society. Meanwhile, it is commonly used in international legislation, where it has been used for over 20 years and classified as a crime against humanity.
What is enforced disappearance?
Enforced disappearance means arrest, detainment, or kidnapping of people followed by concealment of their fate and localization (art. 146-1 Of the Criminal Code of Ukraine, art. 7.2 (i) of the Rome statute of the International Criminal Court). The difference between enforced disappearance and kidnapping is that the former is conducted by the state (by its representatives or controlled agents) instead of private persons in order to strip the victim of protection by law. This crime can only be performed by representatives of the state in order to “remove” real or supposed critics.
Since the beginning of the occupation, there have been 44 cases of enforced disappearances documented in Crimea. In March 2014, 19 victims of enforced disappearances managed to become free, while one victim who disappeared in March and victims who disappeared in the following months and years have been found dead. Three persons who were victims of enforced disappearances have been convicted, and one person was extradited. Additional 15 persons who disappeared between March 2014 and May 2016 have not been found, even though more than four years have passed since the last disappearance. For all these years, relatives of those victims live in uncertainty. While ones continue attempts to find their disappeared relatives, others had to stop looking because of a real or likely threat of revenge by the Russian occupying authority.
What is currently being done to investigate enforced disappearances?
According to the norms of international law, it is Russia as an occupying state who is responsible for enforced disappearances in the occupied Crimea (and, therefore, Russia is responsible for prosecuting those who conducted enforced disappearances). Russia also must search for those who are missing and inform their relatives about their fate. However, none of the 15 cases are effectively investigated.
Such absence of interest on the side of Russian authorities to investigate enforced disappearances might be explained by the fact that in at least 11 out of 15 cases, there
is serious evidence proving the involvement of Russian state institutions (see the detailed description of those enforced disappearances in our thematic report).
Meanwhile, Ukraine as a state started a criminal investigation of enforced disappearances conducted on its sovereign territory. This investigation is being conducted based on the limited abilities of the Ukrainian state institutions. The fact that Ukraine has no control over the territory of Crimea prevents the investigators from accessing evidence and witnesses that are located on the peninsula. The effectiveness of the investigation is further complicated by the fact that a lot of evidence has been lost or no longer exists due to the amount of time that has passed. Some witnesses have withdrawn their statements under pressure from the occupying authorities. Some relatives of the disappeared persons have lost interest in the investigation due to pressure or personal reasons.
Despite the barriers to the effective investigation that do not depend on Ukraine, there are some problems that could be addressed. One of such issues is a wrong legal definition of the cases of enforced disappearances. No matter that since 2018 the “enforced disappearance” has been recognized by Ukraine`s Criminal code as a crime (art. 146-1 of the Criminal Code), all cases of enforced disappearances have been investigated as intentional homicides (art. 115 of the Criminal Code) and\or kidnappings (art. 146 of the Criminal Code). Later some of those cases were reclassified as a violation of rules and customs of warfare (art. 438 of the Criminal Code).
Why does Ukraine not recognize enforced disappearances as such?
CrimeaSOS has submitted an inquiry to the Prosecutor’s Officer of the Autonomous Republic of Crimea – an institution that conducts oversight over most of the cases of enforced disappearances. The request was to explain the reasoning behind the current classification of those criminal cases. The response was the following: “The Criminal Code of Ukraine was amended to include the article 146-1 […] on 12.07.2018 [July 12, 2018]. This is why it is impossible to classify the socially dangerous acts that had been committed prior to 12.07.2018 using the article 146-1 of the Criminal Code of Ukraine, due to the requirements of the criminal procedure legislation of Ukraine.” However, the criminal procedure legislation of Ukraine does not regulate the implementation of the criminal legislation in time. We assume that in this case, the material, not procedural, criminal law is being used. In particular, we refer to article 5 of the Criminal Code of Ukraine (“Retroactivity of the criminal legislation”). However, this argument that it is impossible to use article 146-1 of the Criminal Code of Ukraine is unsound, based on Ukraine’s national and international law for two reasons. First, in 11 cases of classification (under article 438 and article 115 of the Criminal Code of Ukraine), the use of law can be retroactive (prt. 1, art. 5 of the Criminal Code of Ukraine)because the article 146-1 calls for a softer punishment than article 438 and article 115. Second, according to international law, the crime of enforced disappearance is continuous; therefore, the legislation’s retroactivity should not appear at all. The reason why Ukrainian law enforcement services do not consider enforced disappearance as a crime that is continuous might be the absence of official comments regarding the use of article 146-1 from the supreme judicial institutions of Ukraine. Therefore, there is no actual judicial practice of using this article. However, considering that the norms of the international law, approved by the Ukrainian parliament, are part of Ukraine’s national legislation (article 9 of the Constitution of Ukraine), enforced disappearance should be considered a crime that is continuous even without any official comments of judicial practice. Ukraine is a signatory of the International Convention for the Protection of All Persons from Enforced Disappearance that defines enforced disappearance as a continuous crime (art. 8(1) of the Convention). Therefore, this norm can be directly used in Ukraine’s criminal legislation.
The legal experts of CrimeaSOS support the decision of the Prosecutor’s Office of the Autonomous Republic of Crimea to not use article 146-1, at least in its present form. The more important reason why this article cannot be used is that the disposition of articles 146-1 does not quite fit the international classification of enforced disappearance, while the punishment and the statute of limitation, recorded in this article, do not correspond to the gravity of the crime. Considering that the punishment for the crime should correspond to the gravity of the crime, the use of article 146-1 is not viable.
Then why do we need reclassification at all?
Classification of those crimes not as enforced disappearance but as homicides or violation of rules and customs of warfare has a number of disadvantages:
Let’s consider the last point in broader detail. Cooperation with the International Criminal Court is a strategically important way for Ukraine to resist Russian aggression because this is one of the few institutions whose decisions are compulsory and are not influenced by states’ political interests. According to some optimistic provisions, The Officer of the Prosecutor of the International Criminal Court will finish its preliminary investigation on the situation in Ukraine in late 2020-early 2021. After that, the institution will decide whether to start a full investigation. This kind of investigation would serve as serious evidence of Russian illegal actions in Ukraine and would at least complicate the lives of Russian law enforcement services and political elites that are involved in those crimes. They could be arrested and convicted in international criminals. Besides, Ukraine’s cooperation with the International Criminal Court is compulsory because Ukraine has recognized its ad-hoc jurisdiction (art. 12(3) of the Rome Statute) over the international crimes that have been committed in Crimea since February 20, 2014, including enforced disappearances. Therefore, Ukraine has all the responsibilities of cooperation with the Court that are common for other member-states (article 9 of the Rome Statute). Besides, according to the Association Agreement between Ukraine and the EU, Ukraine has to amend its criminal and criminal procedure legislation to correspond with the norms of the Rome Statute of the International Criminal Court. Ukraine is required to ratify the Statute and other related documents (article 8 of the Agreement).
The delay in fulfilling the responsibilities to the International Criminal Court and the EU that Ukraine has accepted and the low quality of fulfillment of those responsibilities has a number of negative consequences. On the one hand, it violates the responsibility of the Ukrainian state to the victims of disappearances and their families. On the other hand, this hurts the international image of Ukraine as a state that asks for help In fighting the Russian aggression but does not use the available methods of defense and does not fulfill its duties.
What should be done?
We believe that the Ukrainian legislation should be amended to correspond with the Rome Statute of the International Criminal Court. This, as well as ratification of the Statute, should be done as soon as possible. The Criminal Code of Ukraine should be amended to correspond to the list and classification of crimes listed in the Rome
Statute. In particular, article 146-1 of the Criminal Code should be amended in order to enforce the punishment and remove the statute of limitations for enforced disappearance as per article 7 and article 29 of the Rome Statute. The Criminal procedure code of Ukraine should be amended to include a norm about the cooperation of Ukraine’s state institutions with the institutions of the International Criminal Court, as per article 9 of the Rome Statute.