Ukraine v Russia (re Crimea): the European Court of Human Rights Goes ‘All-in’

Only the beginning

On 25 June 2024, the European Court of Human Rights (ECtHR) has pronounced the judgment in the first inter-state case brought by Ukraine against Russia. There are three other Ukrainian inter-state applications pending before the ECtHR. The present judgment deals predominantly with the events that took place more than 10 years ago and concerned among other things with the repressions against Ukrainian and Crimean Tatar political activists, removal of prisoners to Russia, restrictions on Ukrainian language and culture in Crimea during and in the aftermath of the occupation of the peninsula by Russia.

In this unanimous judgment the ECtHR used 346 pages to chronicle the story of systemic oppression that violated almost all substantive rights and freedoms of the Convention: it was a clear and undeniable victory for Ukraine. The obvious question in this respect is to what extend this unanimous judgment was possible due to the fact that Russia is no longer a party to the European Convention on Human Rights. In the current circumstance, it is clear that the Russian authorities will do nothing to implement this judgment. This unfortunate situation freed the ECtHR to do what it thought is right without second-guessing the reaction of the respondent state and calculating the consequences of the judgment on the whole system. Finally, the absence of the Judge elected in respect of Russia, made this unanimous judgment possible as it is hard to imagine that the ‘Russian’ Judge would not have added their dissenting opinion to a Court’s pronouncement of this kind.

A few words about the facts

Although important in many senses, this case is less complex than the ones to follow. There is almost no issue of jurisdiction here, as Russia did not contest that they exercise jurisdiction on the territory of Crimea at least from the moment of “Accession Treaty” that had come into force on 18 March 2014. This was not the case for instance in Donetsk and Luhansk although the ECtHR has already confirmed the jurisdiction of Russia on these regions through the doctrine of effective control. Moreover, in the present case no alleged violations took place during the active phase of military hostilities which complicates the questions of jurisdiction.

In the present judgment, the Court decided on two applications submitted by the government of Ukraine which were concerned with treatment of different groups of people on the territory of Crimea by the Russian occupying authorities. The Court found violations of Artiles 2, 3, 5, 6, 8, 9 10, 11, Articles 1 and 2 of Protocol 1, Article 2 of Protocol 4, Articles 14 and 18 in conjunction with multiple Articles of the Convention. There are hardly any substantive Articles left in the Convention. The ECtHR also found a violation of Article 38 of the Convention as the Russian authorities failed to submit documentary evidence to the ECtHR. More detailed description of what was decided by the Court can be found in the press release prepared by the ECtHR.

Administrative practice

The position of the Ukrainian authorities was that they are not applying on behalf of individual applicants although many of such cases were mentioned in the judgment as examples but wish the ECtHR to establish administrative practice of human rights violations installed by Russia in Crimea. To establish such practice two elements need to be satisfied: ‘the repetition of acts constituting the alleged violation and official tolerance of those acts’ (para 948). Unsurprisingly the Court does not often establish that there is an administrative practice of human rights violations as these two factors are hard to prove.

Why were the Ukrainian authorities then so adamant for the ECtHR to establish administrative practice in this case? First, if administrative practice of forced disappearances, killings, torture and other human rights violations is established it would perhaps be easier for the individual applicants from Crimea to subsequently prove that this practice was also applied in their case. Second, and even more importantly, administrative practice demonstrates that the respondent state created the legal system which is fully based on human rights violations, and this must attract additional stigma and in normal circumstances lead to more serious consequences. The ECtHR effectively confirmed the lack of rule of law in Crimea since it was occupied by Russia. From this perspective the ECtHR’s conclusion that Crimean courts, at least from the moment of coming into force of the “Accession Treaty” cannot be considered as tribunals ‘established by law’ is in line with its overall narrative of lawlessness in Crimea.

No tribunals ‘established by law’ in Crimea

The ECtHR decided that all tribunals established in Crimea in accordance with Russian law and applying Russian law cannot be deemed as tribunals ‘established by law’ as provided by Article 6 of the Convention. This conclusion was reached on the basis of analysis of international humanitarian law which effectively prohibits replacement of local laws by the laws of the occupying power, subject to exception which do not seem applicable in this case. Therefore, for the ECtHR in Crimea Russian law is not ‘law’ under the Convention. The finding that all Crimean tribunals are ‘not established by law’ is a very important decision which can lead to serious and multilayered legal consequences. I would argue here that the ECtHR would not be as clear and unambiguous if Russia was still a party to the European Convention. Such pronouncement could have had a potentially devastating effect on the Strasbourg system as a high number of cases could have been submitted to the ECtHR without ever going to the local ‘Crimean courts’. Declaring by the ECtHR one of the national courts in Iceland as the tribunal ‘not established by law’ created significant difficulties in the legal system of this small country. Nothing in the current judgment states that unlawful nature of tribunals in Crimea would disappear with the passage of time. So, arguably any decision made by such tribunals could be considered as decision made in violation of Article 6 and therefore could have been ‘directed’ to the ECtHR. Arguably appeals to the Russian domestic courts would not solve this problem as the applicability of Russian law on the territory of Ukraine was one of the main problems identified by the Court. Obviously, since Russia is no longer a party to the Convention, the Court cannot expect a major influx of such applications.

In previous cases in somewhat similar context the Court was slightly more careful and mindful to the possible consequences of such pronouncements. For example, the situation in Cyprus v Turkey can be compared here. It was established in that case that the Turkish authorities did not seem to completely change the legal system in Northern Cyprus and this can distinguish this case from Ukraine v Russia where Russian law fully replaced Ukrainian law. That said, in Cyprus v Turkey, the ECtHR made a general statement after concluding that Northern Cypriot tribunals are ‘established by law’:

In the Court’s opinion, any other conclusion would be to the detriment of the Greek-Cypriot community and would result in a denial of opportunity to individuals from that community to have an adjudication on a cause of action against a private or public body. It is to be noted in this connection that the evidence confirms that Greek Cypriots have taken successful court actions in defence of their civil rights (para 237).

Perhaps the same argument could be made in the case of Ukraine v Russia, apart from the fact that Turkey was still the party to the Convention at the material time and the judgment like the one in the case under review would have much more severe and long-lasting consequences.

Ulterior motive and political persecutions

The ECtHR highlighted the seriousness of the situation in Crimea also by reference to Article 18. This Article provides that restrictions on the rights enshrined in the Convention cannot be abused by the authorities; in other words, the state cannot use restrictions as a cover up for the purposes other than provided in relevant Articles. For instance, arrest of a person on a suspicion of commission of crime can be legal from the point of view of Article 5 but if it is used to silence political dissent – such actions will violate Article 18 in conjunction with Article 5. In Ukraine v Russia the ECtHR has found administrative practice of using restrictions to multiple rights enshrined in the Convention for ulterior purpose which is something that the ECtHR has done for the first time. Article 18 is a rare and serious violation of human rights and attracts additional stigma to the violation; the same can be said about finding of administrative practice of human rights violations. Here, it seems that the ECtHR used this multilayer stigma to attract additional attention to the situation in the present case.

Less politically important but quite relevant from the legal standpoint is the decision of the ECtHR clarify applicability of Article 18 in conjunction with Articles 6 and 7. There was some diversity in practice of the ECtHR in this respect (para 1332). The ECtHR stated that Article 18 is only applicable where the Convention provides for legal restrictions of rights both explicitly and implicitly. There are a few areas of due process under Article 6 in which such restrictions can be legal and therefore these restrictions can be used for ulterior motives. It means that Article 18 in conjunction with Article 6 is possible. Article 7 does not allow limitations and therefore Article 18 cannot be used here as no restrictions can justify any interference with this right.

Although understandable this position seems internally controversial. The Court stated that if legal restrictions are not permitted in principle, there cannot be an ulterior purpose in utilising these restrictions by the government. If this is true, the logical consequence of this would be that Article 18 should be applicable only in cases where the substantive Article would otherwise not be violated.

For instance, if the Court concluded that the applicant’s freedom of speech is restricted legally under the Convention but the presence of ulterior purpose justifies finding a violation of Article 18 in conjunction with Article 10. However, the Court suggested that ‘there can be a breach of Article 18 even if there in no breach of the Article in conjunction with which it applies…’ (para 1330). For the ECtHR, this is not a precondition for application of Article 18 though. It seems to me that finding a violation Article 10 on its own and then Article 18 in conjunction with Article 10 in the same case hits a similar target and penalises the state for a similar violation twice. In this case the ulterior purpose would undermine the legitimate aim of restriction required by Article 10 and be accounted for within the proportionality analysis of the interference. The violation of substantive Article and Article 18 would only be possible if the former violation is procedural and has nothing to do with substantive restrictions or justification for them. This might be what the ECtHR meant but it has not been clarified.

No conclusion

This judgment in Ukraine v Russia (re Crimea) is only the beginning: it will be the basis for deciding many hundreds of ‘Crimean’ individual cases pending before the ECtHR. Beyond that, there will be other inter-state judgments in cases brought to the ECtHR by Ukraine against Russia. It is very likely that Ukraine will be very successful in these cases, but their success will be almost as certain as the fact that these judgments will remain nicely written legal texts leading to no real consequences at least for the time being. This situation presents both a challenge and an opportunity for the ECtHR. Of course, the effectiveness of these pronouncements will be merely symbolic as Russia will not enforce any of them, but the good news is that nobody really expects Russia to implement these judgments, so the Court’s reputation will unlikely to suffer. This also presents the Court with the opportunity to develop its case law without thinking about the reality of its relations with Russia.