At the end of February, Ukraine submitted another interstate complaint to the European Court of Human Rights (ECHR) against Russia. News sources report that the complaint concerns the existence of the state practices of the murder of her opponents in Russia. Ukraine declares the inability to investigate these crimes and intentional hiding perpetrators. From the words of the Ukrainian government commissioner on ECHR ministry in the Ministry of Justice of Ukraine, Ivan Lishchinsky.
This is not the first dispute in the ECHR between Ukraine and Russia, which became a consequence of the events of the "Crimean Spring" and armed conflict in the east of Ukraine. Earlier, Ukraine sent several interstate complaints about the violation of Russia of the European Convention in the southeast of Ukraine, where Russia allegedly controls separatists and armed groups. The court said complaints for the effectiveness of consideration divided into a territorial basis: concerning the Crimea and for the Donetsk and Lugansk regions.
In January 2021, the ECTR recognized Ukraine complaint against Russia against the Crimea partially acceptable and published the press release on his website.
Why Ukraine can complainThe right of state to file a complaint regarding another state in the ECHR is enshrined in Art. 33 of the Convention on the Protection of Human Rights and Fundamental Relations of 1950 in accordance with the specified norm, any State Party to the Convention may convey to the ECHR, the question of any estimated violation by another State party of the provisions of the Convention and Protocols to it.
What is hiding behind these solutions and what consequences can they entail for Russia?
Russia began to answer the Crimea before he attachedThe ECHR initially permits the issue of the acceptability of the complaint. For interstate complaints similar to Ukraine's complaint, the Court must be established whether the territory was violated by the provisions of the Convention, the jurisdiction of the respondent state for the period specified in the complaint. Otherwise, the respondent state cannot be responsible for violating the Convention.
It is worth remembering that in accordance with the Federal Constitutional Law of 21.03.2014 No. 6-FKZ, the Republic of Crimea is considered to be adopted in the Russian Federation from the date of signing a contract between Russia and the Crimea about his adoption in the Russian Federation and education in Russia of new subjects, that is, 03/18/2014.
But the complaint of Ukraine in the part of the Crimea concerned violations by Russia of the provisions of the Convention from 02.27.2014, that is, the periods when a legally Crimea was still the territory of Ukraine. The ECHR in his last decision in Crimea agreed with the arguments of Ukraine and established the jurisdiction of Russia in the Crimea from 02.27.2014, that is, before his accession to Russia. The court noted that it came to this conclusion in connection with the increased Russian military presence in Crimea from January to March 2014, without coordination with Ukraine and without the presence of a threat to the Russian troops placed in Crimea in accordance with bilateral agreements between countries. The position of Russia on this issue was in the absence of control over the peninsula before signing the contract for the adoption of the Crimea to the Russian Federation, and the military compounds were on the peninsula on legal grounds.
Turkish precedentThis ECHR approach was previously applied in the interstate dispute of Cyprus with Turkey to violate the Convention on the territory of Northern Cyprus. In the case of "Losido vs. Turkey" (Complaint No. 15318/89, the decision of the ECHR dated 03/23/1995) the European Court indicated that the concept of "jurisdiction" in Art. 1 of the Convention is not limited to the sovereign territory of the state. In this case, the court emphasized that the responsibility of the state for violation of the Convention may arise as a result of any military operation when ensuring effective control over the territory of a foreign state directly through armed forces or subordinate local administration.
A similar procedure of the ECHR should hold both the remaining complaints of Ukraine against Russia.
The resolution of the Crimea could be predicted, taking into account the media reports on "polite people" during the period of Crimean events, as well as in connection with the adoption by the Council of the Federation of the Resolution of 01.03.2014 No. 48-SF "On the use of the Armed Forces of the Russian Federation in Ukraine".
What will have to prove UkraineThe question of the jurisdiction of Russia in the territory of Donetsk and Lugansk regions has not yet been considered yet. It seems that for a positive decision on the admissibility of complaints in this part of the ECHR, irrefutable evidence of the direct participation of Russian troops in the conflict and Russian control over the local administration should be presented.
As for the new complaint of Ukraine in the ECHR, it is discussed not only about the episodes of attempted in Russia, but also in other states, including in Ukraine. So Ukraine is obliged to submit evidence of monitoring the territory of the territory for each of the episodes. Otherwise, the ECHR will not be able to make a complaint regarding foreign episodes to consideration.
In such circumstances, the prospects for Russia's recognition by the respondent State of the new complaint - on the episodes of attempts on persons committed in the territory where its jurisdiction does not apply, since this is completely contrary to the article of the Convention, according to which the state undertakes to comply with the rights and freedoms of each person, under his jurisdiction.
Violation of the right to life: how does the ECHR setFrom the press release of the ECHR, it follows that the subject of the complaint is the approval of Ukraine on the availability of political killings in the Russian Federation and violations of the right to life, which is enshrined in the Convention. If the ECHR recognizes the new complaint of Ukraine in terms of episodes, where the jurisdiction of Russia is acceptable, then in each of them the ECHR should consider violating Russia's right to life in the material and procedural aspect, that is, consider the complaint on the merits. What does it mean?
The substantive commitment implies the need to protect the right to life, including various measures to prevent arbitrary deprivation of a person's life, and therefore the state should have not only a legislative base for this, but also effective law enforcement and judicial systems.
As for the procedural part of the compliance with the second article of the Convention, the ECHR has a so-called minimum standard for investigating the circumstances of the disappearance and death of people. For example, the court indicated that the obligation to conduct an effective investigation is a commitment not result, but funds: authorities should take all of them available appropriate measures to ensure evidence relating to the incident under consideration.
In any case, the authorities are obliged to take all necessary measures that can ensure evidence relating to the incident, including to assemble the testimony of witnesses, conduct forensic examination, including openings providing a complete conclusion about injuries and an objective analysis of the clinical picture, including The cause of death. Any omission during the investigation that prevents the establishment of the cause of death or the perpetrator will lead to a violation of this standard (RESOLUTION of the large chamber of the European Court of Juliani and Gaggio against Italy - Complaint # 23458/02, ECHR 2011, §301).
Therefore, the recognition of the ECHR is the fact of violation of the procedural aspect of the right to life will depend on Russia's adoption of all available measures for the establishment of perpetrators, conducting an effective investigation into the crime, informing the victims of the investigation of the case, as well as providing them with the opportunity to familiarize themselves with its materials.
There is no abuseSumming up, it can be assumed that the submission of a new complaint by Ukraine may contain signs of abuse of the right to submit interstate complaints. Taking into account the fact that the consideration of complaints in the ECHR is the process of unprecedented, Ukraine will be able to continue to look for new reasons for the direction of complaints of the court. However, the appeal to the ECHR without providing evidence of the presence of the jurisdiction of Russia for each of the declared episodes of attempts has similarities with the appeal of "imaginary victim" with a statement about the crime into law enforcement agencies.
The author's opinion may not coincide with the position of the VTIMES edition.