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How Ukraine works in international courts to release Crimean political prisoners

April 15, 2020 11:37 0 3050
Political persecutions are one of the most common human rights violations in the occupied Crimea. According to CrimeaSOS, 96 persons are still imprisoned as a result of political persecutions by Russian occupation authorities. About half of them (47) are placed in detention facilities in Crimea, another 42 are behind the bars on the Russian territory, whereabouts of several political prisoners is not precisely known. Below, we propose an overview of Ukraine’s work in international judicial institutions with regard to releasing the political prisoners and bringing the perpetrators to justice.

European Court of Human Rights

Currently, there are five inter-state applications lodged by Ukraine with the European Court of Human Rights (ECHR) against Russia – a record number of cases between two states which the Court has ever considered. Two inter-state cases are related to Ukrainian nationals persecuted by Russia on political grounds.

Inter-state application Ukraine v. Russia no. 20958/14 concerns numerous violations of the European Convention on Human Rights by Russia, including, illegal imprisonment of pro-Ukrainian activists and Crimean Tatars (Art. 5), absence of a fair trial (Art. 6), torture and inhuman treatment (Art. 3).

Another application Ukraine v. Russia (VII) no. 38334/18 is directly focused on persecutions of Ukrainian nationals on political grounds on the Russian territory and in the occupied Crimea. Besides illegal imprisonment, torture and absence of a fair trial, Ukraine also refers to facts of violations of the freedom of religion (Art. 9), the freedom of expression (Art. 10), the freedom of peaceful assembly (Art. 11), discrimination in the protection of human rights on ethnic and religious grounds (Art. 14) and other manifestations of political persecutions.

The ECHR’ decisions may be a viable but slow mechanism to bring Russia to account for political persecutions against Ukrainian nationals. For instance, Georgia had been waiting for a final judgement in one of inter-state applications (Georgia v. Russia (I), no. 13255/07) for 12 years before the ECHR found Russia guilty in collective expulsion of Georgian nationals from the Russian territory and obliged the violator to pay 10 million euros for non-pecuniary damage. It took 20 years before the ECHR awarded 90 million euros for non-pecuniary damage to Cypriot nationals who suffered numerous human rights violations during Turkey’s military operation (case Cyprus v. Turkey (IV) no. 25781/94). As of today, the ECHR has not accepted its jurisdiction over any of the five inter-state complaints yet. If the ECHR awards a final decision in Ukraine’s favour, it will enable to enshrine facts of Crimea’s occupation and large-scale human rights violations on the occupied peninsula in a legally binding court decision, as well as it will give grounds for strengthening sanctions pressure on Russia in case of non-compliance with the court decision.  

International Court of Justice

Political persecutions in the occupied Crimea are also reflected in Ukraine’s complaint to the International Court of Justice (ICJ) against Russia. Inter-state case Ukraine v. Russia concerns violations of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) by Russia. Ukraine proves, inter alia, that Crimean Tatars and ethnic Ukrainians disproportionally often suffer from arbitrary searches, detentions and enforced disappearances (Art. 5 (b) of the CERD), violations of the freedom of religion (Art. 5 (d)(vii), the freedom of opinion and expression (Art. 5 (d)(ix), the freedom of peaceful assembly (Art. 5 (d)(ix), as well as the right to equality before a court (Art. 5 (a). With regard to political persecutions in Crimea, Ukraine requests the ICJ to order Russia to cease unjustified searches and detentions of Crimean Tatars, to restore the rights of ethnic Ukrainians and Crimean Tatars to participate in national cultural gatherings and to pay reparations for victims of these violations.

The ICJ may be an additional means to bring Russia to account for certain events in Crimea and Donbas. In November 2019, the ICJ found that it has jurisdiction over Ukraine’s complaint under both the ICSFT and the CERD, rejecting Russia’s jurisdictional objections. The ICJ is expected to award a final decision in 2-4 years which is binding on parties to a dispute. In turn, non-compliance with the ICJ’s decision may be an additional ground for new international sanctions against Russia.

International Criminal Court

Political repressions in Crimea are also considered by the International Criminal Court (ICC). Ukraine has not ratified the Rome Statute of the ICC but accepted its jurisdiction over events during the Euromaidan, in Crimea and Donbas (under Art. 12(3). Ukrainian law enforcement bodies and human rights groups submitted facts to the ICC, confirming that Ukrainian nationals have become victims of numerous war crimes and crimes against humanity in the occupied Crimea. As of December 2019, the ICC’s Office of the Prosecutor has established preliminary facts that Ukrainian nationals on the peninsula suffered from persecutions on political grounds (Art. 7(1)(h), unlawful confinement (Art. 8(2)(a)(vii) or Art. 7(1)(e), torture (Art. 8(2)(a)(ii) or Art. 7(1)(f), willful deprivation of the right to fair judicial proceedings (Art.  8(2)(a)(vi) and forcible transfer outside the occupied territory (Art. 8(2)(b)(viii) or Art. 7(1)(d).

Throughout 2020, the ICC’s Office of the Prosecutor plans to finalize preliminary examination of the situation in Ukraine and decide whether to open an investigation. In case an investigation into events in Crimea is initiated, the ICC’s Prosecutor may notify of suspicion and issue an arrest warrant against chiefs of FSB departments, detention facilities, prosecutor’s offices and courts involved in persecutions of Ukrainian nationals in the occupied Crimea. Though Russia is not a state party to the ICC, suspects in war crimes and crimes against humanity may not enter territories of 123 states parties where they will be immediately subjected to an arrest warrant of the ICC’s Prosecutor. In addition, none of public officials may be exempted from criminal prosecution based on official capacity (Art. 27).

Thus, Ukraine uses three international judicial institutions to release Crimean political prisoners and bring Russia to account for repressions in the occupied Crimea. If final decisions are awarded in Ukraine’s favour, the ECHR and the ICJ may bring Russia as a state to justice for large-scale human rights violations on the occupied peninsula. In case an investigation is instituted, the ICC may bring perpetrators of war crimes and crimes against humanity to individual criminal responsibility, regardless of their nationality and official post.

 

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