Enforced disappearance is considered as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons acting with the support of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law (Art.2 of the International Convention for the Protection of All Persons from Enforced Disappearance).
We identified and made an overview of problems which impede search for the victims of enforced disappearance.
First, Russian law enforcement bodies are reluctant to investigate cases of enforced disappearances in the occupied Crimea. They usually either refuse to initiate criminal proceedings or suspend investigations. An unwillingness to carry out a thorough investigation is obviously caused by the involvement of FSB officials, members of the “Crimean self-defense” and other organizations loyal to the Russian occupational administration. Their implication is witnessed by relatives of disappeared persons, human rights organizations and reports of the UN Human Rights Monitoring Mission in Ukraine.
Second, punishment for enforced disappearances pursuant to the Ukrainian legislation does not correspond to the severity of the crime in accordance with international legal standards. Art.146-1 of the Criminal Code of Ukraine specifies imprisonment for a term of 3 to 5 years for persons who committed enforced disappearance and a term of 5 to 7 years for superiors who give an unlawful order or did not take necessary measures to prevent the crime by their subordinates. Moreover, the present Ukrainian legislation admits amnesty for persons implicated in enforced disappearances. Thus, Ukraine does not guarantee that punishment would be irreversible for any member of the Russian occupational authorities if he or she is brought before a Ukrainian court on the government controlled area.
Third, Ukraine has limited international legal means to bring Russia to justice for enforced disappearances in the occupied Crimea. In particular, Ukraine cannot use means provided by the International Convention for the Protection of All Persons from Enforced Disappearance, including the right to file a lawsuit to the International Court of Justice, as Russia is not a state party to this Convention. If the International Criminal Court (ICC) initiates an investigation into events in Ukraine, members of the Russian occupational authorities may be brought to individual criminal responsibility for enforced disappearances in Crimea (a type of crimes against humanity pursuant to Art.7 of the Rome Statute of the ICC), however practical responsibility comes only if a suspect enters a territory of 123 states parties of the ICC. Ukraine and victims of enforced disappearances rely on the European Court of Human Rights (ECHR) which is considering an inter-state application ‘Ukraine v. Russia’ no. 20958/14 concerning events in Crimea and individual complaints, though implementation of its final decisions will largely depend on sanctions pressure on Russia and other political circumstances.
Concluding, the effectiveness of search for the missing persons in the occupied Crimea and accountability will depend on many factors. First, a close cooperation is necessary between relatives of missing persons, Ukrainian law enforcement bodies, human rights organizations and the UN Working Group on Enforced or Involuntary Disappearances. Second, Ukraine needs to tighten criminal responsibility for enforced disappearances and carry out a search for missing persons in accordance with Ukrainian standards. Third, bringing Russia to responsibility for enforced disappearances will largely depend on how smartly plaintiffs apply the practice of the ECHR. Fourth, it is necessary for Ukraine, the U.S. and the EU countries to synchronize a sanctions list which should include members of security agencies and Kremlin-controlled organizations, implicated in enforced disappearances in the occupied Crimea and obstructing a thorough investigation.