The Judgment of the European Court of Human Rights (ECtHR) in the Case "Ukraine v. Russia (Regarding Crimea)". What Result Do We Have?

On Tuesday, June 25, 2024, after almost ten years of legal proceedings, the European Court of Human Rights (ECtHR) announced its Judgment in the case "Ukraine v. Russia (Regarding Crimea)". "The government of Ukraine has proven the existence of systematic violations of the rights of our citizens since the beginning of the occupation of Crimea in February 2014."

A brief history of the proceedings of this court case

Consideration of the case was initiated based on two applications against the Russian Federation submitted by Ukraine to the Court under Article 33 of the Convention on the Protection of Human Rights and Fundamental Freedoms (Convention) on March 13, 2014, and August 10, 2018, respectively. Both applications concerned events in Crimea (for the purposes of the present judgment, “Crimea” refers to both the Autonomous Republic of Crimea (ARC) and the City of Sevastopol) and Eastern Ukraine.

This case was under consideration by the Grand Chamber of the European Court of Human Rights (ECtHR) for six years, because on May 7, 2018, a Chamber of the First Section decided to relinquish jurisdiction in favour of the Grand Chamber.

Results of consideration of the court case on its merits

Members of the governmental team, who represented Ukraine, will probably share more details in the future. It is obvious that the communication process with the Russian Federation during the case was surreal. However, it is already possible to find out about the results of the case consideration from the full official text of the judgment (published in English and French).

Thus, in her post on Facebook, Governmental agent Marharyta Sokorenko briefly noted: "The Government of Ukraine has proven the existence of systematic violations of the rights of our citizens since the beginning of the occupation of Crimea in February 2014!". Also, Marharyta Sokorenko emphasized, that the members of the European Court of Human Rights (ECtHR) unanimously established that Ukraine proved the existence of such administrative (i.e., authoritarian) practices on the part of Russia as:

the disappearance of people and the lack of an effective investigation in this regard, contrary to Article 2 of the Convention;

• cruel treatment of people and their illegal detention contrary to articles 3 and 5;
• illegal implementation of Russian legislation, as a result of which courts in Crimea cannot be considered established in accordance with the law, which is contrary to Article 6;
• forced change of Ukrainian citizenship to Russian, which contradicts Article 8;
• systematic mass searches, contrary to Article 8;
• forced transfer of convicts to the territory of the Russian Federation, which violates Article 8;
• attacks and persecution of religious leaders who did not belong to the Russian Orthodox Church, searches and confiscation of property, and in connection with these actions Article 9 is violated;
• closure of non-Russian media, in particular Ukrainian and Crimean Tatar TV stations, constant harassment and attacks on journalists, such actions violate Article 10;
• prohibition of peaceful assemblies and protests and attacks and persecution of their organizers in violation of Article 11;
• expropriation of private property in violation of Article 1 of the First Protocol;
• closure of Ukrainian and Crimean Tatar classes contrary to Article 2 of the First Protocol;
• violation of the right to freedom of movement between the occupied territory of Crimea and the mainland of Ukraine;
• discrimination against Crimean Tatars;
• violation of the rights of political prisoners, the impossibility of their return to Ukraine, and cruel treatment of them on the territory of the occupied Crimea and the Russian Federation.

It is worth emphasizing that none of the 17 judges of the Grand Chamber of the ECtHR expressed any separate opinion regarding any of the established violations.

The judgment is undoubtedly extremely important and significant. It needs to understand its meaning and study the general principles and approaches, the previous practice applied by the European Court of Human Rights (ECtHR) in relation to each of the established violations, which is 1,392 paragraphs, two-thirds of which are statements of facts. This war is indeed the most documented in the history of mankind.

The time period that was considered

At the admissibility stage, it was very important to determine the time limits for consideration of this court case on its merits. The Court limited consideration of the Ukrainian government's claims regarding the respondent state's administrative practices in Crimea (or in relation to Crimea) to the period between February 27, 2014, and August 26, 2015.

This means that political detentions related to the holding of so-called referendums were included in the set of facts that were considered on their merits and were not recognized as unacceptable at the initial stage, which is an indisputable success of Ukraine as an applicant.

Proving the systematic nature of violations against the background of war

Very important for further international judicial proceedings is the emphasis made to separate the jurisdiction of the European Court of Human Rights (ECtHR) and to determine the relationship between the provisions of the Convention and the norms of International Humanitarian Law in this case. This is one of the most important legal issues that the European Court of Human Rights (ECtHR) faces when considering cases of human rights violations (in particular, of a mass nature) against the background of armed conflicts. Therefore, the judges of the ECtHR decided that for each established violation it will find out whether there is a contradiction between the provisions of the Convention and the norms of international humanitarian law, and in this particular case, it came to the conclusion that there is no conflict between these provisions. In this case, they are complementary.

The determination of the defendant's violation of Article 18 of the Convention is decisive — "Restrictions permitted under this Convention regarding the specified rights and freedoms shall not be applied for purposes other than those for which they are established." Violation of this article of the Convention is very difficult to prove, but the Ukrainian legal team managed to do it. The court emphasized that the elements of the case demonstrate not only a regular pattern of perpetration but also the existence of a continuous State policy of stifling any opposition to the Russian policies, a course of action which has been developed and publicly promoted by prominent representatives of important Russian authorities, and which thus constitutes evidence of “official tolerance”. Accordingly, the European Court of Human Rights (ECtHR) concluded that there had been a long-term administrative practice of restricting the rights and freedoms of "Ukrainian political prisoners" in Crimea  for an ulterior purpose not prescribed by the Convention.

What are the consequences?

The Grand Chamber considered the case on its merits but was not prepared to decide the issue of just satisfaction under Article 41 of the Convention. The court considered that the question of the application of Article 41 of the Convention is not ready for decision..

In this regard, the European Court of Human Rights refers to the cases of Cyprus v. Turkey, Georgia v. Russia (I) and Georgia v. Russia (II). In these cases, the Court had previously established three criteria on whether an award by way of just satisfaction was justified in an inter-State case: “(i) the type of complaint made by the applicant Government, which had to concern the violation of basic human rights of its nationals (or other victims); (ii) whether the victims could be identified; and (iii) the main purpose of bringing the proceedings”.

In the judgment "Georgia v. Russia (II)", the Court also reiterated the obligation of the states participating in the treaty to cooperate, which it outlined as follows: "This duty to cooperate, which also applies in inter-State cases ...is particularly important for the proper administration of justice where the Court awards just satisfaction under Article 41 of the Convention in this type of case. It applies to both Contracting Parties: the applicant Government, who, in accordance with Rule 60 of the Rules of Court, must substantiate their claims, and also the respondent Government, in respect of whom the existence of an administrative practice in breach of the Convention has been found in the principal judgment.” We will remind you that in the case "Ukraine v. Russia (re Crimea)" the applicant is Ukraine, and the respondent state is the Russian Federation.

Therefore, the process of communication with Russia should continue, and the European Court of Human Rights will consider the issue of just satisfaction later. This means that the Grand Chamber will deliver a separate judgment on just satisfaction with a separate assessment of the damages caused by the violations found by the Court in the main judgment of 25 June 2024. After that, the mechanisms for its implementation, which will be available at that time, will come into effect. In any case, we should not expect Russia to fulfil its international obligations voluntarily.

You should not expect a quick consideration of the issue of satisfaction. In the case Georgia v. Russia (II), this process took more than two years.

Instead of conclusions

Ukraine is on a long path of struggle for European values, which are common for the member states of the Council of Europe. To ensure high legitimacy (trust and acceptance) of the judgments of International Courts around the world, significant time is needed for the consideration of the facts and motivation of conclusions. It will take years, if not decades, for the perpetrators to bear the responsibility for the war crimes and human rights violations committed during Russia's aggressive war against Ukraine. But we should celebrate every success we can achieve in this long way of ensuring justice and recording the historical truth.

If compared with other intergovernmental mechanisms, the speed and efficiency of legal methods of the response of the Council of Europe institutions to violations of human rights in Europe are the most effective and reliable.

Read this article in Ukrainian and russian.