(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine

In an increasing number of cases, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has been dealing with the question of the application of the European Convention on Human Rights (‘ECHR’, ‘Convention’) on territories which are outside the control of the state to which they belong. Such lack of control is either because of the occupation by a foreign state or because of the control by a separatist movement, as a rule, established and/or existing with the aid of a foreign state. One of the issues that arises in this context is the (non-)recognition of the regime that exercises control over such territory (the de facto regime).

This blog post looks at the Court’s existing approaches to the (non-)recognition of de facto regimes. It then discusses the implication of this approach for cases involving Eastern Ukraine and Crimea that may come before the Court and require it to deal with the question of (non-)recognition.

Existing approaches

The issue of (non-)recognition becomes particularly relevant when the Court is called on to assess proceedings conducted by the courts of a de facto regime in the light of the Convention. The Court has dealt with the issue of (non-)recognition when deciding on the exhaustion of domestic remedies at the admissibility stage, and on claims relating to freedom from arbitrary detention and the right to a fair trial at the merits stage.

In Ilascu and others v Moldova and Russia, the Court refused to recognise as lawful the courts of the ‘Moldovan Republic of Transdniestria’ (‘MRT’). According to the Court, the MRT is ‘an entity illegal under international law and has not been recognised by international community’. The consequence of this was, in the Court’s view, that the courts established by the MRT were unlawful and could not be considered as independent and impartial tribunals established by law, as required by the Convention, owing to the very fact of being put into existence by the unlawful regime. The Court proceeded by stating that the MRT courts belonged to ‘a system which can hardly be said to function on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention’ (para 436). It is to this aspect that the Court’s analysis shifted in more recent decisions regarding Transnistria, such as Mozer v Moldova and Russia. The Court no longer considered that the illegal nature of the de facto regime and its unrecognised status under international law in and of itself rendered the courts unlawful. What mattered was the need to avoid a legal vacuum and whether, in substance, the judicial system could be considered compatible with the Convention principles. The Court did not find evidence of this in the case of MRT in Mozer v Moldova and Russia, one of the justifications being that Moldova was not a member of the Council of Europe and party to the Convention when the isolation of Transnistria happened; the system that operated in Transnistria was therefore based on the old Soviet order and did not embody the values of the Convention. As a consequence, the MRT court, or any other authority in MRT, could not have ordered the applicant’s lawful detention within the meaning of Article 5 of the Convention.

This latter argument reflects the Court’s approach to (non-)recognition in cases involving another de facto regime, that established following the occupation of Northern Cyprus by Turkey. The Court does not view the legal and judicial system operating in Northern Cyprus under the regime of the Turkish Republic of Northern Cyprus (‘TRNC’) as devoid of lawful basis due to it being established by an unlawful regime.

In certain cases the Court has found that the law and courts in Northern Cyprus constituted domestic remedies which needed to be exhausted, provided they were effective, for the purposes of admissibility. The Court builds its argument in this respect on the exception to non-recognition pronounced by the International Court of Justice (‘ICJ’) in its Advisory Opinion on Legal Consequences for States of Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276: invalidity, and as a consequences non-recognition of acts of an unlawful regime:

‘cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants […]’,

in other words, acts of a private law character, that are related to everyday necessities of private individuals and the regulation of relationships between them (Namibia AO, para 125; Separate Opinions of Judge de Castro and Judge Dillard). In the ECtHR’s view, recognizing the judicial system in TRNC for the purposes of the Convention is also compelled by the need to avoid causing detriment to the individuals who may be able to use remedies offered by such system to prevent violations of the Convention, and more generally to avoid a legal vacuum in human rights protection (Cyprus v Turkey; Demopoulos and Others v Turkey).

The upshot of recognising that there is a system of ‘domestic law’ and ‘domestic remedies’ in the TRNC which need to be exhausted, if effective, is that the Court does not consider the court system under the TRNC tainted by the unlawful character of the de facto regime. Even more, in the ECtHR’s view the court system in place in Northern Cyprus represented a judicial tradition compatible with the Convention since the courts were not essentially different from those operating before the occupation by Turkey or those operating in other parts of Cyprus (Cyprus v Turkey). Proceedings before the courts of the TRNC were therefore not necessarily and automatically incompatible with fair trial guarantees and in some cases were found to be in fact consistent with the Convention’s right to a fair trial (Foka v Turkey).

To sum up the Court’s current approach, the unlawful character of a de facto regime that came into existence as a result of a breach of international law does not per se render the judicial system operating under the regime unlawful. The cases relating to MRT and TRNC appear to suggest that, motivated by the need to avoid legal vacuum in human rights protection, the Court is willing to give effect to the legal and court systems of an unrecognized de facto regime where such systems, in the Court’s opinion, are based on principles compatible with the Convention.

Implications for cases involving Eastern Ukraine and Crimea

Applying this approach to potential cases involving Ukraine, one may hypothesize that the Court is likely to draw a distinction between the situation of Crimea and that of Eastern Ukraine. The acts and court decisions in the former may be recognised as valid for the purposes of the Convention and rejected as prima facie devoid of legal basis in the latter. The reason for this is that the law that in reality governs life in Crimea is that of the Russian Federation, itself a party to the Convention and a member of the Council of Europe. Similarly to the Court’s approach to the TRNC, it can be argued that the ‘domestic law’ and the courts in Crimea are at least in theory based on principles reflecting the Convention’s values. The situation in the de facto regimes in Eastern Ukraine, ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ appears to be different. These regimes were characterised as ‘total breakdown of law and order’ (UN OHCHR, Report on the Human Rights situation in Ukraine (2014)), as lacking ‘a developed and legitimate legal system’ (OSCE, Access to Justice and the Conflict in Ukraine; Council of Europe, Parliamentary Assembly, Legal remedies for human rights violations on the Ukrainian territories outside the control of the Ukrainian authorities) and it would seem that at least some courts that operated in the area before the onset of the conflict were moved into the Government-controlled areas (Khlebik v Ukraine).

As a matter of international law, the de facto regimes in Eastern Ukraine as well as the establishment of the current administration in Crimea came into existence as a result of a breach of a peremptory norm of international law prohibiting use of force. The situations created by such breaches are unlawful and should not be recognised as legally valid. Therefore, once such a breach is established, the question of recognition of ‘official acts’ should hinge only on the scope of the exception to the obligation of non-recognition that the ICJ established in Namibia AO. However, given the Court’s approach in recent cases relating to Transnistria and Northern Cyprus, it seems that in substance the Court has departed from the ICJ’s approach. Before applying its current approach to the situations of Crimea and Eastern Ukraine, the Court should consider carefully the implications that recognising the validity of legal systems established under de facto regimes may have for the unlawfulness under international law of the annexation of Crimea and the use of force in Eastern Ukraine.