Why the European Court of Human Rights Remains Key to Justice for Ukraine
Despite Russia’s consistent refusal to comply with ECtHR decisions, we cannot afford to abandon this means of accountability.
Ukraine’s latest request to the European Court of Human Rights (ECtHR) to order Russia to respect its human rights obligations is likely to go the same way as previous appeals – namely, a refusal to comply.
This has been Russia’s consistent response during the last eight years of war.
The ECtHR, based in Strasbourg, France, is the court of law of the Council of Europe and is tasked with ensuring that all member states respect the European Convention on Human Rights. Complaints can be made by individuals or member states, and judgements are binding.
Both before and after Russia’s expulsion from the Council of Europe on March 16, 2022, it has followed a policy of complete disregard for its international obligations under this convention.
I have represented the interests of the victims of the conflict at the ECtHR since 2014, and have witnessed this recalcitrance first hand.
Nonetheless, I would argue that the ECtHR remains a key way that Ukrainian society can achieve justice at the international level and hold Russia accountable for massive violations of human rights on the territory of Ukraine since 2014.
Despite the many obstacles, this is an avenue that both individuals and the Ukrainian state can and should pursue.
Indeed,most recently, Ukraine asked the court to respond robustly to the decision by Russian proxies in the east of Ukraine to hold a show trial of Ukrainian defenders from the Azovstal steel plant on war crimes charges.
The August 23 request was to order Russia to respect the rights of Ukrainian prisoners of war under article two and three of the European Convention on Human Rights, namely the right to life and the prohibition of inhuman and degrading treatment. Kyiv additionally called on the court to ensure Russia provides information about Ukrainian prisoners of war and the conditions in which they are being held, including any medical treatment they require.
This was the second request Ukraine sent to the ECtHR’s since the full-scale invasion of Russia began on 24 February 2022. The first one was made on February 28 2022 and also upheld by the court, obliging Russia to refrain from attacking civilians and to immediately ensure the safety of medical establishments, personnel and emergency vehicles. The ECtHR also subsequently expanded these measures to include the demand that Russia ensure unimpeded civilian access to safe evacuation routes, healthcare, food and other essential humanitarian aid.
Although both Ukraine’s requests were granted by the court and are binding on Russia, Moscow clearly has failed to comply.
This fits the pattern of its failure to respect the results of ten interstate applications Ukraine filed against Russia since 2014, currently consolidated by the court into five cases relating to different periods of the conflict and aspects of violations.
These are the annexation of Crimea, the military activities in the east of Ukraine, the attack on Ukrainian sailors in the Kerch strait on November 29, 2018, the assassinations of Russia's opponents on its territory and outside its borders and, finally, the full-scale February 24 invasion.
In turn, Russia also filed an application against Ukraine, regarding the alleged violation of the rights of the residents of Donbass and Crimea. In particular, Russia highlighted murders, kidnappings, forced resettlement and interference with voting, alongside restrictions on the Russian language and the disconnection of Ukraine's water supply to Crimea.
Russia also declared that Ukraine was the party responsible for the death of all those on Malaysia Airlines flight MH17, due to the failure to close its airspace.
The ECtHR’s remit also extends beyond such interstate cases to the thousands of applications from individual Ukrainians. The exact number is currently unknown, but in October 2021, according to the court, 8,764 individual applications related to the events in eastern Ukraine and Crimea were pending. Given the events following the February 24 full-scale invasion, it can be assumed this number will rise significantly.
According to the ECtHR’s resolution, the court will consider claims against Russia regarding violations that took place before September 16, 2022, that is, within six months after Russia's expulsion from the Council of Europe.
It is obvious that the Court will face numerous difficulties in considering cases related to the armed conflict in Ukraine.
Not only are a huge number of individual applications expected, but there are legal questions regarding the cases, namely Russia's refusal to participate, the lack of a Russian representative among the elected body of judges from all member states, and Moscow’s non-compliance with ECtHR’s future decisions.
However, it is worth noting that there was no benefit from Russia's responses to such requests at all, even when it provided them. All Russia's responses regarding human rights violations in Eastern Ukraine could be reduced to the claim that it was not a participant in the conflict and that any assertions about its involvement were Ukrainian propaganda.
For instance, after the full-scale invasion but before Russia’s exclusion from the organisation, one of my cases involved the threat to the civilian population in the Kyiv region. Russia provided an answer to the court's request, but it was mostly a description of Ukraine's violations of the rights of the residents of Donbas as "a justification for the start of a military operation".
In addition, Russia became the only member state of the Council of Europe to enshrine in law the right to non-enforcement of the court’s decisions.
In 2015, Russia decided that decisions that in their opinion did not comply with the Russian constitution were grounds for non-implementation. Based on the statistics of the committee of ministers of the Council of Europe, Russia currently has not fulfilled decisions in more than 2,000 cases, the highest number amongst all member states.
In June of this year, Russia went further and adopted its own changes to its legislation regarding the general refusal to enforce all ECtHR decisions after March 15, 2022.
It is interesting that the announced date was not March 16, 2022, when Russia was expelled from the Council of Europe, but rather the previous day. That was when Russia declared its withdrawal; apparently, in this way, Russia is trying to demonstrate that it left independently.
Undoubtedly, these legislative implementations violate the European Convention of Human Rights, because according to Article 46, the state is obliged to implement all decisions to which it is a party. Given these circumstances, the question arises as to whether it makes sense to apply to the ECtHR if Russia ignores its decisions.
I would argue that it is definitely necessary, not least because the ECtHR’s decisions have an important legal significance. They provide for the recognition of Russia's responsibility for massive human rights violations on the territory of Ukraine since 2014. This establishes important legal facts by an international judicial institution whose decisions can be taken into account when considering cases by other bodies.
In addition, even the fact of recognising a violation is a component of achieving justice for victims of armed conflict.
And the obligation to implement the decisions of the ECtHR has no time limits. If there are positive changes in Russia's political regime and it shows its intention to return to the Council of Europe in the future, one of the conditions should be the implementation of all ECHR decisions.
The process may be imperfect and full of obstacles, but Ukraine must pursue each and every route towards justice that remains available to it.
Vitalia Lebid is a strategic litigation lawyer with the Ukrainian Helsinki Human Rights Union.
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