1. Introduction
1. Due to the annexation of Crimea
by the Russian Federation and the «hybrid war» in the Donbas region, which
led to the proclamation of the so-called “people’s republics” of
Donetsk (“DPR”) and Lugansk (“LPR”), Ukraine lost effective control
over substantial parts of its territory. The Assembly has strongly
condemned both the annexation of Crimea by the Russian Federation
and the Russian military intervention in the Donbas region as violations
of international law and of the fundamental values of the Council
of Europe.
![(2)
Resolution 2112 (2016); Resolution
2063 (2015), Resolution
1990 (2014) and Resolution
1988 (2014). In this context, the repeated visits by Assembly members
to Crimea and the “DPR” and “LPR” on the invitation of the de facto authorities are unacceptable
(most recently by a French delegation headed by Mr Mariani, see <a href='https://www.rt.com/news/354024-french-lawmakers-visit-crimea/'>https://www.rt.com/news/354024-french-lawmakers-visit-crimea/</a> and the fully justified criticism in Libération (<a href='http://www.liberation.fr/planete/2016/07/31/le-voyage-de-parlementaires-francais-en-crimee-condamne-par-l-ukraine_1469594'>www.liberation.fr/planete/2016/07/31/le-voyage-de-parlementaires-francais-en-crimee-condamne-par-l-ukraine_1469594</a>).](/nw/images/icon_footnoteCall.png)
Whilst I fully share this point
of view, the focus of my mandate as rapporteur is to look into the
human rights situation of the people living in these regions, with
a view to identifying legal remedies for their plight. But in order
to be fully objective and to avoid giving in to the temptation of
simply blaming “both sides”, it is useful to recall who is the aggressor and
who is the victim of the aggression. In such a situation, equidistance
is in reality a form of unequal treatment. This said, Ukraine’s
“victim status” does not give this country a licence to violate
human rights. To the contrary, as Ms Kristýna Zelienkova and I learnt
during our joint visit to the Donbas region earlier this year: the
brave people still living in the conflict zone and the wonderful
civil society activists devoted to helping them as well as those
displaced by the conflict rightly have high expectations vis-à-vis
the Ukrainian authorities – these must set the right example, to
the very best of their abilities.
2. In this report, I will thus deal with the human rights situation
in Crimea and the “DPR” and “LPR” and with the legal remedies available
to victims of human rights violations – including measures to prevent
such violations in the future. Human rights also include the right
to free and fair elections protected in Article 3 of the Protocol
to the European Convention on Human Rights (ETS No. 9).
3. As regards the facts, I rely in the first place on my own
fact-finding activities, including the joint information visit with
Ms Zelienkova as the Assembly’s rapporteur and the experience gained
in dozens of visits to the conflict zone over the last years as
a member of the German Bundestag and the hearings with eminent experts
before our committee during the Assembly’s January, April and June
2016 part-sessions.
4. In addition, I rely on the remarkably comprehensive and coherent
reports published since the beginning of the conflicts by representatives
of the Council of Europe, other international bodies and numerous
non-governmental organisations (NGOs), including:
- the Council of Europe Commissioner
for Human Rights, and the special representative of the Secretary General,
Ambassador Gérard Stoudmann;
- the Human Rights Monitoring Mission in Ukraine of the
United Nations Office of the High Commissioner for Human Rights
(OHCHR HRMMU);
- the Special Monitoring Mission to Ukraine of the Organisation
for Security and Co-operation in Europe (OSCE SMM), as well as the
OSCE’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR)
and High Commissioner on National Minorities (HCNM);
- numerous reports presented by international and national
NGOs, including Amnesty International (AI), Human Rights Watch (HRW),
International Crisis Group (ICG), Open Dialogue Foundation (ODF),
the Open Russia Foundation, the Kiyv Center for Civil Liberties,
the Kiyv International Partnership for Human Rights, the Crimean
Human Rights Group, the Coalition “Justice for Peace in Donbas”,
the Kharkiv Human Rights Group, and numerous grass-roots groups
whose representatives we met in Mariupol and Dnipro.
5. As regards the legal analysis, I base myself first and foremost
on the European Convention on Human Rights (ETS No. 5, “the Convention”)
as interpreted by the European Court of Human Rights (“the Court”).
6. To conclude, I will make some suggestions – as summed up in
the draft resolution – as to how the victims of the human rights
violations in the regions covered by my mandate may obtain redress
and how their situation may be improved in future.
2. The human rights situation in the Ukrainian
territories outside the control of the Ukrainian authorities
2.1. The
human rights situation in Crimea
7. As I was not able to travel
to Crimea, I am relying mostly on the reports by the Council of
Europe’s Commissioner for Human Rights, Mr Niels Muižnieks, and
the special representative of the Secretary General, Ambassador
Gérard Stoudmann,
![(3)
SG/Inf(2016)15
rev dated 11 April 2016, Report to the Secretary General of the
Council of Europe by Ambassador Gérard Stoudmann on his human rights
visit to Crimea (25-31 January 2016) (hereafter: “Stoudmann report”).](/nw/images/icon_footnoteCall.png)
as
well as reports from other international organisations (in particular,
the OHCHR’s HRMMU) and from NGOs. Very importantly, Mr Mustafa Dzhemilev,
former chairperson of the Mejlis and currently a member of the Verkhovna
Rada and of the Ukrainian delegation with the Parliamentary Assembly,
gave an impressive description of the situation in his homeland
at our committee meeting on 21 June 2016.
2.1.1. 1 The
Council of Europe Commissioner for Human Rights
8. The Council of Europe’s Commissioner
for Human Rights published a report on 27 October 2014 on the human
rights situation in Crimea following visits to Kyiv, Moscow and
Crimea from 7 to 12 September 2014.
![(4)
Document CommDH(2014)19
dated 27 October 2014.](/nw/images/icon_footnoteCall.png)
The Commissioner insisted
that all investigations should be conducted in compliance with the
principles established in the case law of the European Court of
Human Rights and stressed the need for accountability for serious
human rights violations. He flagged a number of individual cases
including:
- the disappearance
and death of a protester, Mr Reshat Ametov, whose abduction on 3
March 2014 was shown on the Crimean Tatar television channel ATR;
- the suspect death of 16-year old Mark Ivanyuk on 21 April
2014;
- the cases of three local civil society activists, Leonid
Korzh, Timur Shaimardanov and Seiran Zinedinov, who went missing
between 22 and 30 May 2014;
- the abduction by uniformed men of MM. Islyam Dzhepparov
and Dzhevdet Islyamov on 27 September 2014.
9. Mr Muižnieks also refers to the alleged implication in acts
of violence of the so-called “Samo-oborona” (Self-Defence) units,
whose status and functions remain unclear, and to acts of intimidation
against Crimean Tatars and ethnic Ukrainians who had criticised
“the recent political developments”.
![(5)
See also statement
on 12 September 2014, “<a href='http://www.coe.int/mk/web/commissioner/-/human-rights-abuses-in-crimea-need-to-be-addressed'>Human
rights abuses in Crimea need to be addressed, mission to Kyiv, Moscow
and Simferopol</a>”.](/nw/images/icon_footnoteCall.png)
In April 2015, the Commissioner
made a public statement in defence of the Crimean Tatar ATR television
channel and reiterated his point of view that minorities in Crimea
should be able to freely practise their religion, receive education
in their languages and manifest their views without fear.
![(6)
<a href='http://www.coe.int/az/web/commissioner/thematic-work/media-freedom/-/asset_publisher/3IHAV8UZNfK6/content/commissioner-muiznieks-calls-for-unhindered-broadcasting-of-atr-tv'>Commissioner
Muižnieks calls for unhindered broadcasting of ATR TV,</a> statement of 2 April 2015.](/nw/images/icon_footnoteCall.png)
2.1.2. The
Stoudmann report
10. The visit by Ambassador Stoudmann,
mandated by the Secretary General of the Council of Europe, gave
rise to some controversy. A number of Ukrainian, and in particular
Tatar representatives found the report biased in favour of the Russian
side.
![(7)
See, for
example, “<a href='http://euromaidanpress.com/2016/05/30/what-the-special-mission-of-the-council-of-europe-didnt-notice-in-occupied-crimea/'>What
the special mission of the Council of Europe ‘didn’t notice’ in
occupied Crimea</a>”, Euromaidan Press, 30 May 2016.](/nw/images/icon_footnoteCall.png)
The
report, published before the outlawing of the Mejlis as an “extremist organisation”,
considered that “the cases of repression, as severe as they may
be, seem more targeted against individual opponents, whether they
are Crimean Tatars, Ukrainians or others, rather than reflecting
a collective repression policy against the Crimean Tatars as an
ethnic group”.
![(8)
Stoudmann
report, op. cit., p. 4.](/nw/images/icon_footnoteCall.png)
11. But the report also stated that a ban on the Mejlis of the
Crimean Tatar people as an “extremist organisation” (which has indeed
been imposed in the meantime) would “indicate a new level of repression targeting
the Crimean Tatar community as a whole”.
12. Very importantly, Mr Stoudmann concluded that the situation
is such that it is “neither normal, nor acceptable, that a population
of 2.5 million people should be kept beyond the reach of the human
rights mechanisms established to protect all Europeans”. I cannot
but agree with this statement.
2.1.3. Reports
by the Human Rights Monitoring Mission for Ukraine of the Office
of the United Nations High Commissioner for Human Rights (HRMMU)
13. The HRMMU,
![(9)
See paragraphs 24-34
below.](/nw/images/icon_footnoteCall.png)
which was prevented from opening an office
on the territory of Crimea by the
de
facto authorities, has frequently reported on acts of
intimidation against members of “pro-Ukrainian” population groups,
including national and religious minorities such as the Crimean
Tatars. In its June 2015 report, it stresses the tightening of the
control of the media, including the denial of re-registration under
Russian law and the subsequent closure of at least seven media outlets
using the Crimean Tartar language. Re-registration requirements
have also jeopardised freedom of religion. The HRMMU has also flagged
the “dramatic” situation of vulnerable groups, such as people with
a drug addiction deprived of life-saving substitution therapy.
![(10)
OHCHR, <a href='http://www.ohchr.org/Documents/Countries/UA/10thOHCHRreportUkraine.pdf'>Report
on the human rights situation in Ukraine</a>, 16 February-5 May 2015, p. 6, paragraph 19.](/nw/images/icon_footnoteCall.png)
In
its December 2015 report, the HRMMU also points out the violation
of the right to citizenship:
“Their
right to citizenship has been violated. Although they may keep their
Ukrainian passports and will not be sanctioned for not disclosing
this fact, Crimean residents were granted Russian Federation citizenship
by default and given no choice but to take up Russian Federation
passports or lose their employment and social entitlements.” ![(11)
OHCHR, <a href='http://www.ohchr.org/Documents/Countries/UA/12thOHCHRreportUkraine.pdf'>Report
on the human rights situation in Ukraine</a>, 16 August-15 November 2015, p. 4, paragraph 15.](/nw/images/icon_footnoteCall.png)
14. In its most recent (14th) report published in June 2016,
![(12)
OHCHR, <a href='http://www.ohchr.org/Documents/Countries/UA/10thOHCHRreportUkraine.pdf'>Report
on the human rights situation in Ukraine</a>, 16 February-5 May 2015.](/nw/images/icon_footnoteCall.png)
the HRMMU
highlights the continuing climate of intimidation fostered by the
failure to investigate the killings and disappearances in 2014/15
and in particular the continuing harassment of the Tatar minority
(violent searches and seizures, mass arrests, transfer of Crimean
detainees to Russian prisons, opening of a new television channel
(‘Millet’) broadcasting in the Tatar language with the declared
aim of countering “anti-Russian propaganda”).
![(13)
Ibid., p. 46, paragraph
194.](/nw/images/icon_footnoteCall.png)
2.1.4. European
Union reports
15. At the request of the European
Parliament’s Subcommittee on Human Rights, the European Parliament’s
Directorate-General for External Policies prepared a study on “The
situation of national minorities in Crimea following its annexation
by Russia”,
![(14)
<a href='http://www.europarl.europa.eu/committees/en/droi/supporting-analyses.html'>www.europarl.europa.eu/committees/en/droi/supporting-analyses.html.</a>](/nw/images/icon_footnoteCall.png)
which concentrates on the situation
of national minorities in Crimea and describes numerous human rights
violations targeted specifically at minorities, including the rights to
life, liberty, security and physical integrity and property, the
freedom of assembly, expression, association, religion, freedom
of movement, and education and cultural rights of minorities.
2.1.5. NGO
reports
16. Regarding the situation in
Crimea, the monthly monitoring reports by the “Crimea Field Mission
on Human Rights” set up in March 2014 by a group of NGOs including
the Ukrainian Helsinki Human Rights Union, the Youth Human Rights
Movement and the Human Rights Centre “Almenda” (with the support
of the United Nations Development Program (UNDP) and of the Ministry
of Foreign Affairs of Denmark) appear to be the most serious and
reliable non-governmental source of information.
![(15)
All reports of the
Field Mission and of the Crimea Human Rights Group since April 2014
(the most recent covering June 2016) are available at: <a href='http://crimeahr.org/'>http://crimeahr.org;</a> leading international human rights groups have also
published in-depth reports on the human rights situation in Crimea,
see Amnesty International, <a href='https://www.amnesty.org/en/documents/EUR50/1129/2015/en/'>“Ukraine:
One year on: Violations of the rights to freedom of expression,
assembly and association in Crimea,”</a> 18 March 2015, Index number: EUR 50/1129/2015; Human
Rights Watch, <a href='https://www.hrw.org/report/2014/11/17/rights-retreat/abuses-crimea'>“Rights
in retreat: abuses in Crimea”</a>, 17 November 2014; and <a href='https://www.hrw.org/news/2015/06/23/russia-independent-group-targeted-over-crimea'>“Russia:
independent group targeted over Crimea”</a>, 23 June 2015.](/nw/images/icon_footnoteCall.png)
The Crimea Field Mission’s
monthly reports provide useful information on the progress of individual
cases and on trends developing over time. The Field Mission also
provides detailed information on threats to freedom of expression
in Crimea, including media freedom, freedom of assembly and freedom
of religion since the annexation. As an example of the kind of cases
followed up by the Field Mission, its May 2015 report
![(16)
Dated 24 June 2015,
available at: <a href='http://crimeahr.org/en/brief-review-of-crimean-human-rights-field-mission-may-2015/'>http://crimeahr.org/en/.</a>](/nw/images/icon_footnoteCall.png)
noted that a practice has evolved
in Crimea whereby pro-Ukrainian activists residing in Crimea are
prosecuted for acts committed prior to the establishment of control
of the Russian Federation, or for participation in events that took
place outside of Crimea (for example in other Ukrainian cities),
which, in the opinion of the Crimean authorities, threatened the
established order of power. This also applies to the “Case of 26
February”, where criminal proceedings under Article 212 of the Criminal
Code of the Russian Federation (organising and participating in
“mass disorders”) were opened against the Deputy Chairperson of
the Mejlis, Mr Ahtem Chiygoz, and four other activists (MM. Ali
Asanov, Eskender Nebiev, Eskender Kantemirov and Eskender Emirvaliev).
![(17)
Human Rights Field
Mission report May 2015 (note 16 above), p. 3.](/nw/images/icon_footnoteCall.png)
The
May 2015 report provides disturbing details about the arrest and
torture of the pro-Ukrainian activist Oleksandr Kostenko, who was
convicted by a court in Simferopol on the basis of confessions allegedly
obtained under torture, and following a flawed trial presenting
numerous characteristics pointing to its political motivation.
![(18)
Ibid., pp. 5-6.](/nw/images/icon_footnoteCall.png)
The
May 2016 report relates a new case of disappearance of a Tatar activist,
namely the abduction, on 24 May 2016, of Erwin Ibragimov. In its latest
report covering June 2016, the NGO Group cites public statements
by the Crimean chief prosecutor which cast doubt on the effectiveness
of the investigation into Mr Ibragimov’s disappearance. In addition
to the monthly reports, the Crimea Human Rights Group publishes
thematic reports. One such report published in February 2016 presents
numerous instances of politically motivated persecution and discrimination
on the ground of pro-Ukrainian views (“Crimea: Ukrainian identity
banned”). The most recent thematic report, dated June 2016, on “The
victims of enforced disappearance in Crimea as a result of the illegal
establishment of the Russian Federation control (2014-2016)” provides
detailed descriptions of the circumstances of these disappearances
and analyses the obstacles in the path of effective investigation
(including at best unclear relations between the “Crimean self-defence
forces” suspected of involvement in these crimes and the – de facto
– Crimean law-enforcement authorities).
17. Other detailed reviews of specific human rights issues under
the occupation are provided by a group of Ukrainian expert analysts
(CHROT,) regarding in particular the right to liberty of movement
and freedom to choose residence and the right to property, including
nationalisation of property (companies, institutions and organisations
State-owned and owned by trade unions, private enterprises); prevention
of disposition of private property in case of non-registration of
real property in accordance with the Russian procedure; demolition
of constructions not authorised by the
de
facto authorities (example: demolition of a 16-storied
building at Cape Crystal in Sevastopol); difficulties while removing
private property from the occupied territory to mainland Ukraine
and vice versa; and mandatory re-registration in accordance with
Russian law of all legal entities registered on the territory of
Crimea and Sevastopol with denial in some cases and nationalisation
of the property.
![(19)
“Crimea
beyond rules. Thematic review of the human rights situation under
occupation”, Issue No. 2, Right to property, <a href='http://crimeahumanrights.org/wp-content/uploads/2015/11/Crimea_Beyond_Rules_EN._Issue_2.pdf'>http://crimeahumanrights.org/wp-content/uploads/2015/11/Crimea_Beyond_Rules_EN._Issue_2.pdf</a>.](/nw/images/icon_footnoteCall.png)
18. Leading international human rights groups have also published
in-depth reports on the human rights situation in Crimea, including
Amnesty International and Human Rights Watch.
![(20)
Amnesty International, <a href='https://www.amnesty.org/en/documents/EUR50/1129/2015/en/'>“Ukraine:
One year on: Violations of the rights to freedom of expression,
assembly and association in Crimea,”</a> op. cit.; Human Rights Watch, <a href='https://www.hrw.org/report/2014/11/17/rights-retreat/abuses-crimea'>“Rights
in retreat: abuses in Crimea”</a>, op. cit.; <a href='https://www.hrw.org/news/2015/06/23/russia-independent-group-targeted-over-crimea'>“Russia:
independent group targeted over Crimea”</a>, op. cit.; and “<a href='https://www.hrw.org/news/2016/03/18/ukraine-fear-repression-crimea'>Ukraine:
Fear, Repression in Crimea, rapid rights deterioration in 2 years
of Russian rule</a>”, 18 March 2016.](/nw/images/icon_footnoteCall.png)
The most comprehensive factual
documentation of human rights violations in Crimea, covering the
period between February 2014 and February 2016, can be found in
the report by a coalition of Ukrainian NGOs entitled “The Peninsula
of Fear: Chronicle of Occupation and Violation of Human Rights in
Crimea”.
![(21)
Sergiy
Zayets (Regional Center for Human Rights), Olexandra Matviychuk
(Center for Civil Liberties), Tetiana Pechonchyk (Human Rights Information
Centre), Darya Svyrydova (Ukrainian Helsinki Human Rights Union)
and Olga Skrypnyk (Crimean Human Rights Group): <a href='http://helsinki.org.ua/wp-content/uploads/2016/05/PeninsulaFear_Book_ENG.pdf'>http://helsinki.org.ua/wp-content/uploads/2016/05/PeninsulaFear_Book_ENG.pdf.</a>](/nw/images/icon_footnoteCall.png)
Last but not least, the “Memorial”
Anti-Discrimination Centre dedicated a detailed report to the violation
of the rights of lesbian, gay, bisexual and transgender (LGBT) people
in Crimea (and the Donbas region).
![(22)
Memorial Anti-discrimination
Centre, “Violations of the rights of LGBT people in Crimea and Donbass:
The problem of homophobia in territories not under Ukrainian control’,
June 2016: <a href='http://hro.rightsinrussia.info/hro-org/lgbtrights-10'>http://hro.rightsinrussia.info/hro-org/lgbtrights-10.</a>](/nw/images/icon_footnoteCall.png)
Based on dozens of eyewitness reports,
it describes the persecution of sexual and gender minorities and
the atmosphere of fear, secrecy and insecurity created by openly
homophobic armed people, decrees and regulations passed by local
“authorities” under the influence of Russian laws restricting the
rights of minorities and prohibiting “propaganda of non-traditional sexual
orientations”.
2.2. The
human rights situation in the “DPR” and “LPR”
2.2.1. The
Council of Europe Commissioner for Human Rights
19. From 30 November to 5 December
2014, the Commissioner visited Kyiv and the eastern regions of Ukraine,
including two towns (Kurakhove and Krasnoarmiysk) situated close
to the (then) frontline. The Commissioner stated that
“[n]umerous serious human rights
violations have occurred, as reported by the United Nations Office
of the High Commissioner for Human Rights (OHCHR) and others, implicating
primarily the rebel forces, but also governmental forces and volunteer
battalions fighting alongside them”. ![(23)
Statement dated 8 December
2014, <a href='http://www.coe.int/en/web/commissioner/-/conflict-in-eastern-ukraine-has-dire-impact-on-human-rights'>“Conflict
in eastern Ukraine has dire impact on human rights”</a>.](/nw/images/icon_footnoteCall.png)
20. The Commissioner referred to information on “hundreds of cases
of unlawful killings, abductions and enforced disappearances, as
well as torture and ill-treatment” and insisted on the need for
accountability of those responsible no matter which side of the
conflict they are on. He also pointed out the plight of the 500 000 internally
displaced persons (IDPs) and the hardships suffered by the persons
residing in the territories outside the control of the Ukrainian
authorities, in particular vulnerable groups such as the elderly,
persons with disabilities and persons living in penal or psychiatric
institutions.
![(24)
See
also Nils Muižnieks, “<a href='http://www.coe.int/en/web/commissioner/-/eastern-ukraine-the-humanity-behind-the-headlines?inheritRedirect=true&redirect=%2Fen%2Fweb%2Fcommissioner%2Fopinion-articles'>Eastern
Ukraine: the humanity behind the headlines</a>”, in: Open Democracy, 17 December 2014.](/nw/images/icon_footnoteCall.png)
21. From 29 June to 3 July 2015, the Commissioner undertook another
visit to Ukraine, including some regions in eastern Ukraine outside
the control of the Ukrainian authorities (Donetsk). His statement
following the visit focuses mainly on humanitarian issues, including
access to humanitarian aid for residents and their freedom of movement
across the dividing line and buffer zone.
![(25)
Statement on “Eastern
Ukraine: freedom of movement is vital to preventing isolation and
favouring reintegration”, 4 July 2015.](/nw/images/icon_footnoteCall.png)
22. The Commissioner’s most recent visit to the conflict region
in the Donbas took place from 21 to 25 March 2016. A brief visit
to Donetsk City, including a meeting with a senior staff member
of the “Ombudsman” of the “DPR”, was facilitated by the United Nations
HRMMU. In his report dated 11 July 2016,
![(26)
<a href='https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2928475&SecMode=1&DocId=2379824&Usage=2'>CommDH(2016)27</a>.](/nw/images/icon_footnoteCall.png)
the Commissioner presented
inter alia the results of interviews
with more than a dozen people who had been deprived of their liberty
on both sides of the contact line. He found their detailed accounts
of torture and ill-treatment particularly convincing in that they
were strikingly consistent, having regard to the fact that the people
were interviewed individually. Regarding unacknowledged detention,
the Commissioner noted that several interviewees detained in government-controlled
areas claimed that they were held incommunicado and/or in unacknowledged
places of detention for at least part of the time of their detention.
Those who had been deprived of their liberty in non-government controlled
areas were held in basements of administrative buildings used by
“various local structures performing military and security-related
functions, as well as by armed groups”. The Commissioner noted that
his request to visit places of detention in Donetsk was refused
by the de facto authorities, who did not allow any such visits by
international monitors as they were not foreseen by “local legislation”.
He also noted that the Ukrainian authorities generally granted such
access. But regarding certain alleged places of detention run by
the Security Service of Ukraine (SBU), he had received information from
a number of interlocutors on suspicious movements of detainees ahead
of an anticipated international monitoring visit.
![(27)
At paragraph 25; the
Commissioner’s report also refers to a statement of 25 May 2016
by the UN Subcommittee on the Prevention of Torture complaining
about the denial of access to places in several parts of the country
where it suspected people were detained by the SBU.](/nw/images/icon_footnoteCall.png)
Commissioner
Muižnieks also called the reintroduction of the death penalty in
the non-government controlled areas “a regrettable step backwards,
which must be reversed”.
![(28)
See
Executive Summary, 2nd paragraph; and paragraphs 13 and 14.](/nw/images/icon_footnoteCall.png)
Last
but not least, the Commissioner’s report also recalls the difficult
social and administrative situation of the inhabitants of the conflict
zone.
23. In an interview dated 26 July 2016, Commissioner Muižnieks
expressed his disappointment that during his visit to Donetsk City,
he did not have the level of access that he had anticipated to representatives
of the de facto authorities and to places of special interest from
a human rights perspective.
2.2.2. The
OHCHR’s Human Rights Monitoring Mission in Ukraine
24. In March 2014, the OHCHR deployed
a strong human rights monitoring mission in Ukraine (HRMMU) with
offices in Kyiv, Lviv, Odessa, Donetsk and Kharkiv.
![(29)
See <a href='http://www.google.fr/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&uact=8&ved=0CCMQFjAAahUKEwjxgfuQr_nHAhWH0hoKHdZdD4w&url=http%3A%2F%2Fwww.ohchr.org%2FDocuments%2FCountries%2FUA%2FAnnexReport.doc&usg=AFQjCNGDLgn5JUccgJ-Rt0WKoVDBSgW8wA'>Concept
Note, UN human rights monitoring in Ukraine</a>. The planned office in Simferopol, in Crimea, could
not be opened because the de facto authorities would not receive
the mission nor guarantee its security; see <a href='http://www.ohchr.org/RU/NewsEvents/Pages/DisplayNews.aspx?NewsID=14371&LangID=E'>UN-Assistant Secretary-General
for Human Rights Ivan Simonovic Press Conference in Kiev, Ukraine,
14 March 2014.</a>](/nw/images/icon_footnoteCall.png)
The mission, totalling about 35 observers
initially headed by Mr Armen Harutunyan,
![(30)
On 23 June 2015, Mr Harutunyan
was elected as judge of the European Court of Human Rights on behalf
of Armenia.](/nw/images/icon_footnoteCall.png)
has been tasked with reporting on
the human rights situation and providing support to the Government
of Ukraine in the promotion and protection of human rights.
25. The HRMMU has so far published 14 human rights monitoring
reports,
![(31)
<a href='http://www.ohchr.org/EN/Countries/ENACARegion/Pages/UAReports.aspx'>www.ohchr.org/EN/Countries/ENACARegion/Pages/UAReports.aspx.</a>](/nw/images/icon_footnoteCall.png)
the most recent one in June 2016
covering the period between 16 February 2016 and 15 May 2016. These
regular reports are valuable resources in that they provide relevant
details, which may enable the identification of the victims and
suspected perpetrators of serious human rights violations, including
arbitrary killings (for example of captured soldiers), torture,
kidnappings, and the indiscriminate shelling of civilians. The mission
clearly performs its job neutrally and independently, on the basis
of its international mandate. This is particularly valuable in the
prevailing climate of mutual distrust between the Ukrainian authorities
on the one hand and the leadership of the self-proclaimed “people’s
republics” of Donetsk and Luhansk and the Russian authorities on
the other, which is fuelled by frequent violations of the ceasefire
and an ongoing propaganda war.
26. The findings of the OHCHR mission are indeed devastating.
Regarding human rights violations by the armed groups (pro-Russian
separatists), the HRMMU made the following findings,
inter alia:
“[T]here has been deliberate targeting by the armed groups
of crucial public utilities like water, electricity and sewerage
plants that have shut down essential supplies to the residents.
Public and private properties have been illegally seized and residences
destroyed. Banks have been robbed and coal mines attacked. Railways
were blown up. Hospitals and clinics were forced to shut down (…)
The rule of law no longer existed and was replaced by the rule of
violence.” ![(32)
<a href='http://www.ohchr.org/Documents/Countries/UA/Ukraine_Report_15July2014.pdf'>OHCHR,
Report on the human rights situation in Ukraine</a>, 15 July 2014, p. 3, paragraph 5.](/nw/images/icon_footnoteCall.png)
“[A]rmed groups continue to terrorise the population in
areas under their control, pursuing killings, abductions, torture,
ill-treatment and other serious human rights abuses, including destruction
of housing and seizure of property. They abducted people for ransom
and forced labour and to use them in exchange for their fighters
held by the Ukrainian authorities.” ![(33)
Statement to the Security
Council by Ivan Šimonović, Assistant Secretary-General for Human
Rights, meeting on Ukraine, 24 October 2014: <a href='http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15212&LangID=E'>www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15212&LangID=E</a>.](/nw/images/icon_footnoteCall.png)
“[T]he collapse of law and order on the territories controlled
by the self-proclaimed ‘Donetsk people’s republic’ and the self-proclaimed
‘Luhansk people’s republic’ continued to be aggravated by ongoing armed
hostilities between the Ukrainian armed forces and armed groups.
The hostilities continue to be accompanied by violations of international
humanitarian law and have had a devastating impact on the overall
enjoyment of human rights by an estimated five million people living
in the area. In places directly affected by the fighting, such as
Debaltseve, Donetsk and Horlivka, people pleaded to the HRMMU: ‘we just
want peace’.” ![(34)
<a href='http://www.ohchr.org/Documents/Countries/UA/10thOHCHRreportUkraine.pdf'>OHCHR,
Report on the human rights situation in Ukraine</a>, 16 February to 15 May 2015, p. 3, paragraph 4.](/nw/images/icon_footnoteCall.png)
27. HRMMU reports also candidly observe how the “professionalisation”
of the “armed groups” fighting in eastern Ukraine has become more
and more “openly acknowledged” and “self-evident”:
“Their leadership, many of whom
are nationals of the Russian Federation are trained and hardened
by experience in conflicts such as Chechnya and Transnistria (…)
Heavy weaponry including mortars and anti-aircraft guns, tanks and
armoured vehicles, and landmines are now being used by them.” ![(35)
<a href='http://www.ohchr.org/Documents/Countries/UA/Ukraine_Report_15July2014.pdf'>OHCHR
Report on the human rights situation in Ukraine</a>, 15 July 2014, paragraph 8; <a href='http://www.ohchr.org/Documents/Countries/UA/UkraineReport28August2014.pdf'>Report
on the human rights situation in Ukraine</a>, 17 August 2014, paragraph 2 (“Armed groups are now
professionally equipped and appear to benefit from a steady supply
of sophisticated weapons and ammunition, enabling them to shoot
down Ukrainian military aircraft such as helicopters, fighter jets
and transport planes”); OHCHR, Report on the human rights situation,
16 September 2014, paragraph 3: “Armed groups of the self-proclaimed
‘Donetsk people’s republic’ and ‘Luhansk people’s republic’ were bolstered
by an increasing number of foreign fighters, including citizens
of the Russian Federation. On 27 August, the so-called ‘prime minister’
of the ‘Donetsk people’s republic’, Alexander Zakharchenko, stated
on Russian State television that 3 000-4 000 Russians were fighting
alongside the armed groups, including former or serving Russian
soldiers, on leave from their posts.”; see also p. 7, paragraph
21; OHCHR, <a href='http://www.ohchr.org/Documents/Countries/UA/10thOHCHRreportUkraine.pdf'>Report
on the human rights situation in Ukraine</a>,16 February
to 15 May 2015, p. 4, paragraph 6.](/nw/images/icon_footnoteCall.png)
“The absence of effective control of the Government of
Ukraine over considerable parts of the border with the Russian Federation
(in certain areas of Donetsk and Luhansk regions) continued to facilitate
an inflow of ammunition, weaponry and fighters to the territories
controlled by the armed groups. Robust military presence on both
sides of the contact line carried persistent risks of resurgence
of hostilities. Despite the general observance of the ceasefire,
the presence of military equipment near civilian facilities continued
to threaten the security of the local population.” ![(36)
OHCHR, <a href='www.ohchr.org/Documents/Countries/UA/12thOHCHRreportUkraine.pdf'>Report
on the human rights situation in Ukraine</a>, 16 August to 15 November 2015, p. 5, paragraph 22.](/nw/images/icon_footnoteCall.png)
28. Between the beginning of hostilities in mid-April 2014 and
15 May 2016, at least 9 371 people were documented as killed and
21 532 as wounded, and hundreds of people remain missing. The HRMMU considers
this as a conservative estimate. The overall trend of lower levels
of civilian casualties since the September 2015 ceasefire continued.
Nevertheless, the HRMMU recorded 113 new conflict-related casualties in
eastern Ukraine between February and May 2016 (14 killed and 99
injured).
![(37)
OHCHR, <a href='www.ohchr.org/Documents/Countries/UA/Ukraine_14th_HRMMU_Report.pdf'>Report
on the human rights situation in Ukraine</a>, 16 February to 15 May 2016, paragraphs 3, 23 (and note 23),
24 and 26.](/nw/images/icon_footnoteCall.png)
The HRMMU received new reports on
killings, torture and ill-treatment as well as unlawful arrests,
forced labour, looting, ransom demands and extortion of funds on
the territories controlled by the armed groups. The persecution
and intimidation of persons suspected of supporting the central
authorities remained widespread. The population of the territories controlled
by the armed groups is increasingly isolated from the rest of Ukraine
since the Government of Ukraine decided to temporarily relocate
State institutions from these territories and to stop allocations
of funds and disbursements of social payments to institutions and
individuals. Obviously, the most vulnerable population groups (pensioners,
families with children, persons in institutional care) suffer the
most. Last but not least, the inhabitants of the “people’s republics”
suffer from the permit system introduced by a Temporary Order of
the Security Service of Ukraine (SBU) on 21 January 2015, which
limits freedom of movement across the contact line. According to
the OHCHR mission, the system continues to give rise to intolerable
delays and corrupt practices (though a hotline for complaints established
by the Headquarters of the Anti-Terrorist Operation seems to have
brought some relief
![(38)
Ibid.,
paragraph 88.](/nw/images/icon_footnoteCall.png)
). Four civilians were killed and
eight others wounded on 27 April 2016 by the shelling at night of
a checkpoint in the village of Olenivka (on the road between Mariupol
and Donetsk City). The OSCE crater analysis indicates the responsibility
of the Ukrainian armed forces.
![(39)
Ibid., paragraph 20.](/nw/images/icon_footnoteCall.png)
For HRMMU,
“[t]his is a stark illustration of the impact of the limitations
on freedom of movement, which have compelled civilians to spend
prolonged periods exposed to the violence and risks of ongoing hostilities
near the contact line”.
29. Earlier reports by the HRMMU provide detailed accounts of
other specific violations of human rights and international humanitarian
law by the separatist fighters, such as:
- the rocket attacks on 24 January 2015 on the market place
in the government-controlled city of Mariupol, killing at least
31 people and wounding 112, and on 13 January 2015 on a bus at a
Ukrainian checkpoint near the Government controlled town of Volnovakha,
killing 13 civilians and wounding 18;
![(40)
<a href='http://www.ohchr.org/Documents/Countries/UA/9thOHCHRreportUkraine.pdf'>OHCHR,
Report on the human rights situation in Ukraine, 1 December 2014
to 15 February 2015</a>, p. 4, paragraph 6, and p. 7, paragraphs 24 and 25.](/nw/images/icon_footnoteCall.png)
- the use of human shields, by locating military assets
in, and conducting attacks from, densely populated areas, thereby
putting the civilian population at risk;
![(41)
<a href='http://www.ohchr.org/Documents/Countries/UA/UkraineReport28August2014.pdf'>OHCHR,
Report on the human rights situation in Ukraine, 17 August 2014</a>, p. 3, paragraph 4; Report 16 September 2014, p. 3,
paragraph 4 and p. 7, paragraph 24.](/nw/images/icon_footnoteCall.png)
- the shelling of civilians trying to leave the conflict
areas (including an attack on 18 August 2014 on a column of vehicles
with civilians evacuating from Luhansk, allegedly by armed groups,
between the settlements of Novosvitlivka and Khryashchuvate, killing
at least 17 persons).
According to the HRMMU, “[r]eports
suggest that some incidents of shelling coincided with the evacuation
of civilians and may have been targeted to prevent it”; ![(43)
<a href='http://www.ohchr.org/Documents/Countries/UA/9thOHCHRreportUkraine.pdf'>OHCHR,
Report on the human rights situation in Ukraine, 1 December 2014
to 15 February 2015</a>, p. 8, paragraph 29.](/nw/images/icon_footnoteCall.png)
- the deliberate killing of soldiers who had surrendered
or were trying to do so;
and the ill-treatment
of captured servicemen; ![(45)
OHCHR, <a href='http://www.ohchr.org/Documents/Countries/UA/9thOHCHRreportUkraine.pdf'>Report
on the human rights situation in Ukraine</a>, 1 December
2014 to 15 February 2015, p. 10, paragraph 33, referring to an incident
on 22 January. 2015, when a dozen Ukrainian servicemen captured
at Donetsk airport were forced to march through the streets of Donetsk,
several of them having been assaulted by an armed group commander and
by onlookers.](/nw/images/icon_footnoteCall.png)
- the introduction of the death penalty by the “people’s
republics” of Donetsk
and
Luhansk; ![(47)
<a href='http://www.euractiv.com/sections/europes-east/belarus-and-ukrainan-rebels-keep-death-penalty-alive-europe-313427'>“Belarus
and Ukraine rebels keep death penalty alive”</a>, Euractiv, 17
April 2015.](/nw/images/icon_footnoteCall.png)
- the violation of the election rights of the residents
of the “people’s republics” of Donetsk and Luhansk, who were prevented
by the armed groups from participating in the national presidential
and parliamentary elections in May and October 2014
and subjected to the so-called “referendum
on self-rule” on 11 May 2014 and the so-called “elections” on 2
November 2014 organised by the armed groups in violation of the
Ukrainian Constitution and of the most basic international standards. ![(49)
Ibid., p. 3, paragraph
3, and p. 4, paragraph 11.](/nw/images/icon_footnoteCall.png)
30. The HRMMU observed the further strengthening of parallel “governance
structures” of the “Donetsk People’s Republic” and the “Luhansk
People’s Republic”, with their own legislative frameworks, including parallel
systems of law enforcement and administration of justice (“police”,
“prosecutors” and “courts”), in violation of the Constitution of
Ukraine and in contravention of the spirit of the Minsk Agreements.
The most recent report published in June 2016 states that the “OHCHR
is concerned that the development of parallel structures of ‘administration
of justice’ leads to systematic abuses of the rights of persons
deprived of their liberty by the armed groups and issuance of decisions
which contravene human rights norms”.
![(50)
OHCHR, <a href='http://www.ohchr.org/Documents/Countries/UA/Ukraine_14th_HRMMU_Report.pdf'>Report
on the human rights situation in Ukraine</a>, 16 February to 15 May 2016, paragraph 66.](/nw/images/icon_footnoteCall.png)
31. The HRMMU recalls that the “officials” of the ‘DPR” and the
“LPR” are responsible and shall be held accountable for human rights
abuses committed on territories under their control. This particularly
applies to people bearing direct command responsibility for the
actions of perpetrators.
![(51)
OHCHR,
Report on the human rights situation in Ukraine, 16 August to 15
November 2015, p. 3, paragraph 6.](/nw/images/icon_footnoteCall.png)
32. The HRMMU does not fail to report also on alleged violations
of international humanitarian and human rights law by Ukrainian
forces, in particular the SBU and certain volunteer battalions,
in the form of disproportionate or indiscriminate shelling of populated
areas,
![(52)
OHCHR, <a href='http://www.ohchr.org/Documents/Countries/UA/9thOHCHRreportUkraine.pdf'>Report
on the human rights situation in Ukraine</a>,1 December 2014
to 15 February 2015, p. 7, paragraph 25 (shelling of a trolley bus
and public transport stop in Donetsk on 22 January 2015 killing
13 civilians and wounding 12; and shelling of the town of Horlivka
held by the armed groups on 29 January 2015 killing eight and wounding
19 civilians).](/nw/images/icon_footnoteCall.png)
abductions of civilians for prisoner
exchange purposes,
![(53)
For
example, <a href='http://www.ohchr.org/Documents/Countries/UA/10thOHCHRreportUkraine.pdf'>OHCHR,
Report on the human rights situation in Ukraine, 16 February to
15 May 2015</a>, p. 13, paragraph 53 (referring to a person from the
Government-controlled town of Sloviansk who was reported to have
been “exchanged” three times).](/nw/images/icon_footnoteCall.png)
arbitrary arrests,
secret detentions and ill-treatment of prisoners.
![(54)
Ibid., pp. 10-12, paragraphs
40-49.](/nw/images/icon_footnoteCall.png)
The HRMMU is right in insisting that the
perpetrators of such abuses must be held to account in the same
way as the separatist fighters.
![(55)
For example, OHCHR,
Report on the human rights situation in Ukraine, 15 June 2015, p.
3, paragraph 5, p. 5, paragraph 13; <a href='http://www.ohchr.org/Documents/Countries/UA/UkraineReport28August2014.pdf'>Report
on the human rights situation in Ukraine</a>, 17 August 2014, p. 3 paragraph 4; Report on the human rights
situation in Ukraine, 16 September 2014, p. 3, paragraph 4, p. 5,
paragraph 10, p. 7, paragraph 24.](/nw/images/icon_footnoteCall.png)
In its most
recent report, HRMMU relates allegations of over 20 cases of arbitrary
and incommunicado detention as well as torture. A detention centre
run by the Ukrainian Security Service (SBU) in Kharkiv is suspected
of being used for such abuses.
![(56)
<a href='http://www.ohchr.org/Documents/Countries/UA/Ukraine_14th_HRMMU_Report.pdf'>OHCHR,
Report on the human rights situation in Ukraine</a>, 16 February to 15 May 2016, paragraphs 30-34 and 58-59.](/nw/images/icon_footnoteCall.png)
The
SBU has so far refused access to international monitors, as have
the “de facto authorities” of the “LPR” and “DPR”.
![(57)
At its June 2016 meeting,
the committee invited its Chairperson to request information from
the CPT on this issue.](/nw/images/icon_footnoteCall.png)
The HRMMU notes that “arbitrary
detention, torture and ill-treatment remain deeply entrenched practices”.
![(58)
<a href='http://www.ohchr.org/Documents/Countries/UA/Ukraine_14th_HRMMU_Report.pdf'>OHCHR,
Report on the human rights situation in Ukraine</a>, 16 February to 5 May, paragraph 29.](/nw/images/icon_footnoteCall.png)
33. Regarding accountability, the HRMMU notes the efforts of the
Ukrainian authorities to bring perpetrators from their own ranks
to justice. Between March 2014 and February 2016, the Office of
the Military Prosecutor reportedly investigated 726 crimes committed
by members of the armed forces (including 11 killings, 12 cases of
torture and 27 of arbitrary deprivation of liberty). A total of
622 persons were charged and 381 of them prosecuted. So far, 272
persons have been judged.
![(59)
Ibid.,
paragraph 55.](/nw/images/icon_footnoteCall.png)
But the OHCHR remains concerned
about the administration of justice by the Ukrainian authorities,
in particular towards persons accused of involvement with the armed
groups:
“The application of a
counter-terrorism and security framework to conflict-related detention
has created a permissive environment and climate of impunity.” ![(60)
Ibid., paragraph 57.](/nw/images/icon_footnoteCall.png)
34. The OHCHR also notes that the armed groups have also taken
some steps to “prosecute” perpetrators from their own ranks. The
“Office of the Prosecutor General” of the “LPR” reportedly stated
that criminal cases against members of two armed groups headed by
“Batman” and Serhii Ksohorov were submitted to the “military court”
of the “LPR”.
2.2.3. The
OSCE observation mission
35. The OSCE’s Special Monitoring
Mission to Ukraine (SMM), currently headed by Ambassador Ertuğrul Apakan
(Turkey), was established on 21 March 2014 by OSCE Permanent Council
Decision No. 1117. The decision tasked the SMM to,
inter alia, “establish and report
facts in response to specific incidents and reports of incidents,
including those concerning alleged violations of fundamental OSCE
principles and commitments” as well as to “monitor and support respect
for human rights and fundamental freedoms, including the rights
of persons belonging to national minorities”.
![(61)
OSCE Permanent Council
Decision No. 1117 <a href='http://www.osce.org/ukraine-smm'>Deployment of an OSCE
Special Monitoring Mission to Ukraine</a>, PC.DEC/1117, 21 March 2014; see in particular the <a href='http://www.osce.org/ukraine-smm/116879?download=true'>“fact
sheet”</a>.](/nw/images/icon_footnoteCall.png)
The SMM is an unarmed, civilian
mission, present on the ground around the clock in all regions of
Ukraine, with the exception of Crimea. Its main tasks are to observe
and report in an impartial and objective way on the situation in
Ukraine; and to facilitate dialogue among all parties to the crisis.
The mandate of the Mission covers the entire territory of Ukraine,
including Crimea. The Mission’s Head Office is in Kyiv, where Ms Zelienkova
and I had a very constructive meeting with Ambassador Apakan. The SMM’s
monitoring teams work in 10 of the biggest cities of Ukraine: Chernivtsi,
Dnepropetrovsk, Donetsk, Ivano-Frankivsk, Kharkiv, Kherson, Kyiv,
Luhansk, Lviv and Odessa. About 350 monitors currently work in the Donetsk
and Luhansk regions.
36. The SMM produces daily reports
![(62)
<a href='http://www.osce.org/ukraine-smm/daily-updates'>www.osce.org/ukraine-smm/daily-updates.</a>](/nw/images/icon_footnoteCall.png)
summed up in weekly reports
![(63)
Not in the public domain
(made available to OSCE member States’ governments).](/nw/images/icon_footnoteCall.png)
providing
(very) detailed information on facts observed, including ceasefire
violations (with details on the number and nature of shootings, detonations,
and their likely origin and responsibility), damage assessment (including
assessment of the likely origin of the grenade or missile strike,
through “crater analysis”), supervision of the sites to which certain weapons
systems were withdrawn in line with the Minsk I and II ceasefire
agreements, documentation of border crossings, etc. The SMM also
reports on incidents in which the monitors were refused access to
certain sites or were unable to access such sites due to unresolved
security and safety issues. According to the SMM, the majority of
these incidents are the responsibility of the armed groups.On 26
July 2015, an OSCE monitoring patrol came under targeted machine
gun, mortar and grenade fire leading to serious injury of one of
the monitors.
![(64)
<a href='http://uacrisis.org/30171-obsye-12'>Statement
by Deputy Chief Monitor Alexander Hug, “Direct violence committed
against OSCE monitors, one monitor hospitalised”</a>, 30 July 2015.](/nw/images/icon_footnoteCall.png)
37. I have read a large number of these reports, which are impressive
in terms of their objectivity, neutrality and detail. It is regrettable
that they have received so little attention in the political arena
in Europe. In light of these reports, it is very difficult not to
despair, given that violations of the ceasefire agreements still
occur on a daily basis. It is also very regrettable that due to
its limited mandate, the SMM is at times even prevented from reporting
facts it actually observed, such as transports over the border between
Russia and Ukraine.
38. The SMM also produces thematic reports.
![(65)
<a href='http://www.osce.org/ukraine-smm/156571'>www.osce.org/ukraine-smm/156571; </a>See for example the reports on “Gender Dimensions of
SMM’s Monitoring: One Year of Progress” (22 June 2015); on “Freedom
of movement across the administrative boundary line with Crimea” (19 June
2015), on “Protection of Civilians and their Freedom of Movement
in the Donetsk and Luhansk Regions” (13 May 2015) and on “Findings
on Formerly State-Financed Institutions in the Donetsk and Luhansk
Regions” (30 March 2015).](/nw/images/icon_footnoteCall.png)
The most recent such
report on “Access to Justice and the Conflict in Ukraine” (22 December
2015) studies the implications of the relocation of all judicial,
prosecution and administrative services from non-government- to
government-controlled areas. It describes constraints on access
to effective and fair judicial services caused by a combination
of actions taken by the self-proclaimed “people’s republics”, and
the relocation of government services motivated by the loss of government
control over certain areas. The report states that access to justice
remains severely limited due to the absence of legitimate justice
services in non-government-controlled areas, the loss of case files,
restrictions on freedom of movement and the difficulty of giving
notice of proceedings in these areas. The SMM also points out that
the “relocated” administration of justice faces challenges such
as resource constraints, difficulties in the reconstitution of case
files, and in particular the inability to enforce judgments in the
areas outside of the control of the Ukrainian authorities. The report
also scrutinises unlawful detentions both in government- and non-government-controlled
areas. The process of court relocation and the development of parallel
“justice” systems has also led to the arbitrary deprivation of liberty
of persons on both sides of the contact line. In government-controlled
areas, the loss of files for cases relating to the “DPR”- and “LPR”-controlled
areas prevents convicted persons from lodging an appeal, and pre-trial
detention periods are prolonged as prosecutors attempt to rebuild case
files. In “DPR”- and “LPR”-controlled areas, people deprived of
their liberty are subject to newly established parallel “courts”
which are non-transparent and raise fair trial concerns; and judicial
decisions by the “relocated” courts to acquit or otherwise release
a person detained in the non-government-controlled areas cannot
be executed. In sum, the report demonstrates the inability both
of the Ukrainian authorities and of the self-proclaimed “people’s
republics” of Donetsk and Luhansk to guarantee access to justice.
![(66)
OSCE SMM to Ukraine
report on “Access to Justice and the Conflict in Ukraine”, 22 December
2015, pp. 4-5.](/nw/images/icon_footnoteCall.png)
2.2.4. Reports
by international and national NGOs and human rights defenders
39. Leading international human
rights groups such as Amnesty International and Human Rights Watch have
published several in-depth reports on human rights violations during
the ongoing conflict in eastern Ukraine, which confirm and further
underpin the findings of the OHCHR and OSCE observation missions.
Local human rights groups also maintain a steady flow of reports,
including shorter articles and statements, which contribute to keeping
the victims’ plight in the public conscience.
![(67)
<a href='http://freeukrainenow.org/tag/foundation-for-the-study-of-democracy/'>Another
report by the hitherto unknown Foundation for the Study of Democracy
and the Russian Public Council for International Cooperation and
Public Diplomacy on “War crimes of the armed forces and security
forces of Ukraine: torture of the Donbass region residents”</a>, published in Russian and English in November 2014,
is written in such a polemic tone that it may rather fall into the
category of “propaganda war”.](/nw/images/icon_footnoteCall.png)
Amnesty International
has mostly concentrated on “core” human rights violations such as
murder, enforced disappearance and torture.
![(68)
<a href='https://www.amnesty.org/en/latest/news/2014/10/eastern-ukraine-conflict-summary-killings-misrecorded-and-misreported/'>“Eastern
Ukraine conflict: Summary killings, misrecorded and misreported”</a>, 20 October 2014; <a href='https://www.amnesty.org/en/documents/eur50/1683/2015/en/'>“Ukraine:
Breaking Bodies: Torture and Summary Killings in Eastern Ukraine”</a>, 22 May 2015, Index number: EUR 50/1683/2015.](/nw/images/icon_footnoteCall.png)
Human Rights
Watch has chosen to focus mainly on alleged violations of international
humanitarian law, such as attacks with unguided rockets on populated
areas
![(69)
<a href='https://www.hrw.org/news/2015/02/03/ukraine-rising-civilian-death-toll'>“Ukraine:
Rising Civilian Death Toll, Unlawful Unguided Rocket Attacks on
Populated Areas”</a>, 3 February 2015.](/nw/images/icon_footnoteCall.png)
and the use of
cluster munitions, allegedly by both sides of the conflict,
![(70)
<a href='https://www.hrw.org/news/2014/10/20/ukraine-widespread-use-cluster-munitions'>“Ukraine:
Widespread Use of Cluster Munitions, Government Responsible for
Cluster Attacks on Donetsk”</a>, 20 October 2014. <a href='https://www.hrw.org/news/2015/03/19/ukraine-more-civilians-killed-cluster-munition-attacks'>“Ukraine:
More Civilians Killed in Cluster Munition Attacks, Both Sides Have
Used Widely Banned Weapon”</a>, 19 March 2015.](/nw/images/icon_footnoteCall.png)
and finally the failure
to grant access to medical care to civilians.
![(71)
<a href='https://www.hrw.org/news/2015/03/13/ukraine-civilians-struggle-get-medical-care'>“Ukraine:
Civilians Struggle to Get Medical Care, All Sides Should Ensure
Delivery of Aid to Civilians in Rebel-Held Areas”</a>, 13 March 2015.](/nw/images/icon_footnoteCall.png)
In a joint report
with the Harvard Law Human Rights Program, Human Rights Watch generally
questions the legality of explosive weapons in populated areas and
calls for a mutual agreement to curb their use.
![(72)
<a href='http://hrp.law.harvard.edu/staff/new-joint-report-on-civilian-harm-from-explosive-weapons/'>“Civilian
Harm from Explosive Weapons: Agreement Needed to Curb Use in Towns,
Cities”</a>, 19 June 2015.](/nw/images/icon_footnoteCall.png)
40. In July 2016, Amnesty International and Human Rights Watch
published a joint report
![(73)
“You
Don’t Exist” – Arbitrary Detentions, Enforced Disappearances, and
Torture in Eastern Ukraine, 21 July 2016, available at: <a href='https://www.hrw.org/report/2016/07/21/you-dont-exist/arbitrary-detentions-enforced-disappearances-and-torture-eastern'>https://www.hrw.org/report/2016/07/21/you-dont-exist/arbitrary-detentions-enforced-disappearances-and-torture-eastern.</a>](/nw/images/icon_footnoteCall.png)
presenting 18 cases of enforced disappearance
in the conflict zone in eastern Ukraine – 9 allegedly committed
by the Ukrainian authorities, in particular the SBU, and 9 by the
de facto authorities of the “DPR” and “LPR”. The report, based on
interviews with numerous witnesses, family members and officials,
does not claim to cover all relevant cases, or that the number of
such cases is the same on both sides.
![(74)
The selection by the
HRW/AI of these cases was based on their ability to document them
in the most reliable way.](/nw/images/icon_footnoteCall.png)
But it documents a
pattern of abuse which may well be linked indirectly to the Minsk
Agreement clauses on prisoner exchange: people are apparently arrested
as “currency” for exchange. This would be a highly unlawful form
of “hostage taking”, which must be stamped out.
41. A report by the International Crisis Group (“Ukraine: the
Line”) dated 18 July 2016
![(75)
“Ukraine:
the Line”, Paul Quinn-Judge (<a href='https://www.crisisgroup.org/europe-central-asia/eastern-europe/ukraine/ukraine-line'>https://www.crisisgroup.org/europe-central-asia/eastern-europe/ukraine/ukraine-line</a>).](/nw/images/icon_footnoteCall.png)
describes, in particular, the dramatic
situation of the still substantial civilian population living along
the line of contact. They suffer frequent casualties and live in
a state of permanent fear, which has serious health consequences. Civilians
are still endangered by the practice, observed on both sides, of
stationing heavy weaponry in densely populated areas.
42. A report by a group of Ukrainian NGO’s named “Justice in exile”
![(76)
“<a href='http://ccl.org.ua/en/news/report-justice-in-exile/'>Justice
in exile – Observance of the right to a fair trial in the east of
Ukraine, including the territory that is temporarily not controlled
by the Ukrainian government</a>”, Center for Civil Liberties and Coalition of Public
Organizations and Initiatives “Justice for Peace in Donbas”, January
2016.](/nw/images/icon_footnoteCall.png)
highlights problems concerning the administration
of justice on both sides of the contact line similar to those described
in the above-mentioned thematic report by the OSCE, with a special
focus on the functioning of the “exiled” courts in the government-controlled
parts of the Donetsk and Luhansk oblasts to which jurisdiction for
cases in the non-government controlled areas has been transferred.
43. Last but not least, the “Memorial Anti-discrimination Centre”,
in its June 2016 report on “Violations of the rights of LGBT people
in Crimea and Donbass: The problem of homophobia in territories
not under Ukrainian control” gives a dramatic account of the deteriorating
situation of sexual minorities in the self-proclaimed people’s republics.
![(77)
<a href='http://adcmemorial.org/www/publications/violation-of-lgbti-rights-in-crimea-and-donbass-the-problem-of-homophobia-in-territories-beyond-ukraine-s-control?lang=en'>http://adcmemorial.org/www/publications/violation-of-lgbti-rights-in-crimea-and-donbass-the-problem-of-homophobia-in-territories-beyond-ukraine-s-control?lang=en</a>.](/nw/images/icon_footnoteCall.png)
3. Which
legal remedies for victims of human rights violations on the Ukrainian
territories outside the control of the Ukrainian authorities?
44. Among the legal remedies available
to the victims themselves, the possibility of an application to
the European Court of Human Rights is of paramount importance, in
particular in the situation where the “courts” established by the
de facto authorities lack legitimacy and are still underdeveloped
(as in the “DPR” and “LPR”) and/or unlikely to provide a fair hearing
to persons alleging to be victims of human rights violations caused
by the actions of the same authorities. The International Criminal
Court (ICC) may also have a role to play after the two declarations
by Ukraine which effectively grant the ICC jurisdiction for all
international crimes committed on Ukrainian territory since 21 November
2013.
3.1. Application
to the European Court of Human Rights
45. Both Ukraine and the Russian
Federation are States Parties to the European Convention on Human Rights.
![(78)
Both States have also
ratified the International Covenant on Civil and Political Rights
(ICCPR) as well as its First Optional Protocol allowing for individual
communications to the Human Rights Committee. But for reasons of
space and competence, I intend to focus mainly on remedies available
under the European Convention on Human Rights.](/nw/images/icon_footnoteCall.png)
Any
person who considers that his or her rights under the Convention
have been violated may submit an application to the European Court
of Human Rights, after the exhaustion of available domestic remedies (Article
3.1).
3.1.1. The
Court’s previous practice and pending cases
46. Under the Court’s case law
developed with regard to the situation in the northern part of Cyprus
![(79)
See Cyprus v. Turkey, Application No.
25781/94, judgments (Grand Chamber) of 10 May 2001 (merits) and
12 May 2014 (just satisfaction).](/nw/images/icon_footnoteCall.png)
in the Transnistria
region of the Republic of Moldova,
![(80)
See Ilascu and others v. Moldova and Russia,
Application No. 48787/99, judgment of 8 July 2004 (Grand Chamber).](/nw/images/icon_footnoteCall.png)
and,
most recently, in the Nagorno-Karabakh region of Azerbaijan,
![(81)
See Chiragov and others v. Armenia,
Application No. 13216/05, judgment of 16 June 2015 (Grand Chamber).](/nw/images/icon_footnoteCall.png)
residents
of a region in one State Party that is
de
facto under the control of another State Party may lodge
an application both against the State to whom the territory in which
he or she resides belongs
de jure and
the State which exercises
de facto control.
The Court found the northern part of Cyprus to be
de facto controlled by Turkey, Transnistria
by Russia, and the Nagorno-Karabakh region by Armenia. Similar cases emanating
from South Ossetia and Abkhazia, the breakaway regions of Georgia
supported by Russia, have been brought before the Court, but at
the end of July 2016, they had not yet been decided.
47. This is true also for the numerous applications brought before
the Court by inhabitants of Crimea and of the conflict zone in the
Donbas.
![(82)
On 28
July 2016, the Court declared an application against Ukraine and
Russia by persons who claimed their houses were destroyed because
of the conflict as inadmissible, for lack of evidence. The applicants
had submitted only their passports and photographs of destroyed
houses, but not evidence of their ownership of these houses nor
any explanations why such evidence was not submitted (see the Court’s
press release: <a href='http://hudoc.echr.coe.int/eng-press?i=003-5449480-6831542#{'itemid':['003-5449480-6831542']}'>http://hudoc.echr.coe.int/eng-press?i=003-5449480-6831542#'itemid':['003-5449480-6831542']</a>).](/nw/images/icon_footnoteCall.png)
I was informed by the Registry
of the Court that by mid-June 2016, the Court had received several
thousand individual applications related to the events in Crimea
(prior to and after the annexation of the peninsula by Russia, including
ones not directly relating to the conflict but requiring examination
of the issue of jurisdiction). The applications concern a wide range
of issues – right to life, prohibition of torture, right to liberty,
right to fair trial, right to private life, freedom of expression,
right to effective remedy, protection of property, etc.
48. More than 3 400 complaints have been introduced against Ukraine
and Russia in relation to the conflict situation, some of them against
only one or the other. 420 applications were introduced against
Russia, Ukraine and the United Kingdom – the latter on the ground
that the United Kingdom, being party to the 1994 Budapest Memorandum
and a guarantor of Ukraine’s security and sovereignty, failed to
take necessary steps in order to provide assistance to Ukraine as
a victim of aggression.
49. More than 250 applications have been lodged by soldiers and/or
their relatives in connection with the abduction and subsequent
captivity of servicemen/women in the course of military action.
In those cases, the applicants also allege unlawful detention, ill-treatment
in the course of detention, poor conditions of detention, as well
as forced labour. More than 3 500 applications have been introduced
by civilians who mainly complain about their property being damaged
in the course of military activity in the region. The majority of
applicants also complain about the lack of access to a court, violations
of the right to respect for private live, freedom of expression,
and about the impossibility to receive a pension. In 150 cases,
the complaints lodged by victims or their relatives relate to killings,
injuries, torture or enforced disappearances by separatist fighters
or in the course of military activity.
50. In my view, the Court’s case law developed with regard to
northern Cyprus, Transnistria and Nagorno-Karabakh allowing victims
of human rights violations occurring in these regions to file applications
(also) against Turkey, Russia and Armenia due to the effective control
they exercise over these regions could also apply to Crimea and
the “DPR” and “LPR”.
![(83)
See
Luzius Wildhaber, former President of the European Court of Human
Rights, “<a href='http://www.xecutives.net/dmdocuments/Luzius-Wildhaber-Krim-Ostukraine-und-Voelkerrecht-18-12-2014.pdf'>Crimea,
Eastern Ukraine and international law</a>”, 2016 (in German).](/nw/images/icon_footnoteCall.png)
51. As summed up by Professor Luzius Wildhaber, a former President
of the Court:
“According to the
Court’s case law, jurisdiction is established where a State actually
exercises effective control over a certain area. The control may
be exercised either directly through armed forces or indirectly
through a subordinate local administration. Violations of the European
Convention on Human Rights are imputable to the controlling State
where the local administration survives by virtue of the military,
economic and political support of the State.” ![(84)
Luzius Wildhaber, “Crimea,
Eastern Ukraine and International Law”, in El
Tribunal Europeo de Derechos Humanos. Una visión desde
dentro, p. 394 (with further references, including to the Court’s
judgments in Loizidou v. Turkey, Issa v. Turkey, Ilascu v. Moldova and Russia,
Cyprus v. Turkey, Al-Skeini v. United Kingdom and Chiragov and others v. Armenia).](/nw/images/icon_footnoteCall.png)
3.1.2. “Effective
control” by Russia over Crimea and the “DPR” and “LPR”?
52. In the case of Crimea, actual,
effective control by the Russian Federation is not actually denied
by Russia. Control is clearly exercised by Russian armed forces,
even though the fact that the “little green men” without insignia
who took control of strategic points during the “creeping annexation”
were Russian servicemen was officially denied
![(85)
Initially, President
Putin reportedly stated that the “men in green” were not Russian
servicemen, but groups of local militia who had seized their weapons
from the Ukrainian army (“<a href='http://www.bbc.com/news/world-europe-26532154'>‘Little
green men’ or ‘Russian invaders?</a>’”, BBC News, 11 March 2014.](/nw/images/icon_footnoteCall.png)
until
President Putin publicly conceded their involvement in November
2014.
![(86)
See NZZ, 18 November 2014, p. 1; in
May 2015, a monument to the “polite men” who took part in the operation
in Crimea was unveiled in Belogorsk, see <a href='http://www.rferl.org/content/russia-monument-polite-people-crimea-invasion/27000320.html'>www.rferl.org/content/russia-monument-polite-people-crimea-invasion/27000320.html.</a>](/nw/images/icon_footnoteCall.png)
There is also no doubt that the de
facto authorities in Crimea are “subordinate” to the Russian Federation.
They are in fact considered as part and parcel of the Russian State
structures by the Russian authorities themselves.
53. In the case of the conflict zone in the Donbas, some chronological
differentiation may be necessary. During the actual military conflict,
effective control was – literally – fought over between the Ukrainian
forces and the “pro-Russian” armed groups, and their respective
zones of control shifted every day. In order to establish jurisdiction
of Russia, potential applicants to the Court will need to establish
not only that the “armed groups” were in fact controlled by Russia,
but also that they were in control of the “locus delicti” where
the alleged violation took place at the time when it took place.
54. Regarding the former issue, the parallel with the run-up to
the annexation of Crimea speaks for a strong role of serving Russian
military personnel in these armed groups. This form of “hybrid warfare”
by unmarked soldiers was apparently used by Russia for the first
time in the 1992 Transnistrian conflict.
![(87)
Jeff Hahn, “<a href='http://www.361security.com/analysis/russias-use-of-hybrid-warfare-as-a-tool-of-foreign-policy-in-the-near-abroad'>Russia’s
use of hybrid warfare as a tool of foreign policy in the near abroad</a>”.](/nw/images/icon_footnoteCall.png)
An investigative report on the
military involvement of Russia in the conflict in eastern Ukraine
and Crimea (“Putin.The War”
![(88)
“<a href='http://www.libertas-institut.com/wp-content/uploads/2015/05/EUFAJ-Special-NemtsovReport-150521.pdf'>Putin.
The War – about the involvement of Russia in the Eastern Ukraine
conflict and in the Crimea</a>”, Boris Nemtsov/Ilya Yashin, 12 May 2015.](/nw/images/icon_footnoteCall.png)
), initiated
by Boris Nemtsov before his assassination and completed by Ilya
Yashin and others, was presented by Mr Vladimir Kara-Murza during
our committee meeting in January 2016.
![(89)
Full text of the statement
by Vladimir V. Kara-Murza, Coordinator of Open Russia and Deputy
Leader of the People’s Freedom Party (Moscow, Russia) available
from the Committee secretariat.](/nw/images/icon_footnoteCall.png)
This report and
another referenced by Mr Kara-Murza (“An invasion by any other name:
the Kremlin’s dirty war in Ukraine”
![(90)
“<a href='http://www.interpretermag.com/wp-content/uploads/2015/09/IMR_Invasion_By_Any_Other_Name.pdf'>An
invasion by any other name: the Kremlin’s dirty war in Ukraine</a>”, Institute of Modern Russia/The Interpreter.](/nw/images/icon_footnoteCall.png)
)
provides strong elements of proof for the presence of Russian soldiers
and their decisive role during the fighting in the Donbas. Their
active involvement also led to numerous casualties among them, many
of which have been documented by the Committee of Soldiers Mothers
![(91)
See “<a href='http://euromaidanpress.com/2014/08/27/mothers-compiled-a-list-of-400-russian-soldiers-killed-and-wounded-in-ukraine/'>Mothers
compiled a list of 400 Russian soldiers killed and wounded in Ukraine</a>”; see also The Guardian, 19 January
2015, “<a href='https://www.theguardian.com/world/2015/jan/19/russia-official-silence-for-families-troops-killed-in-ukraine'>They
were never there, Russia’s silence for families of troops killed
in Ukraine</a>”.](/nw/images/icon_footnoteCall.png)
and other civil society activists
collecting and verifying information on “cargo 200” (a codename
for the transport of “body bags” with dead soldiers), in particular
by the use of social media – despite aggressive attempts by the
authorities to keep this information secret.
![(92)
See “Invasion by any
other name”, op. cit., pp. 45-78, presenting numerous very specific
facts and testimonies; Newsweek,
7 March 2016, “<a href='http://europe.newsweek.com/over-2000-russian-fighters-dead-ukraine-presidents-spokesman-434295?rm=eu'>Over
2000 Russian fighters killed in Ukraine: President’s spokesman</a>”; see also “<a href='http://www.forbes.com/sites/paulroderickgregory/2015/08/25/kremlin-censors-rush-to-erase-inadvertent-release-of-russian-casualties-in-east-ukraine/'>Russia
May Have Inadvertently Posted Its Casualties In Ukraine: 2 000 Deaths,
3 200 Disabled”,</a> 25 August 2015 (the author bases himself on the budget
made available for compensating the families of killed and disabled
soldiers).](/nw/images/icon_footnoteCall.png)
Russian soldiers were also taken prisoner
by Ukrainian forces.
![(93)
See,
for example, “<a href='http://www.independent.co.uk/news/world/europe/russian-servicemen-captured-in-ukraine-convicted-of-terror-offences-a6990136.html'>Russian
servicemen captured in Ukraine convicted of terror offenses</a>”, The Independent,
18 April 2016; many more examples are provided in the two reports
referenced by Mr Kara-Murza.](/nw/images/icon_footnoteCall.png)
During our fact-finding
visit, at the “townhall meeting” in Mariupol, we also heard the
detailed testimony of a Ukrainian military pastor, a survivor of
the battle of Ilovaisk, and who spoke very convincingly about the
Russian prisoners his unit had taken. Their presence among the Ukrainian
soldiers caught in the “green corridor” through which they were
meant to withdraw did not stop the prisoners’ fellow soldiers on
the other side from shelling them at close range. Senior separatist
leaders boasted of the participation of numerous Russian soldiers
in the conflict, though they went on to claim that these were “volunteers”,
who were in fact “on holiday”.
![(94)
Statements by Alexander
Zakharchenko, “prime minister” of the “DPR” and former “DPR defence
minister” Igor Girkin (aka Strelkov), quoted in “Putin. The War”,
op. cit., pp. 17 and 53.](/nw/images/icon_footnoteCall.png)
Ironically, Russian
army regulations cited by the Nemtsov report
![(95)
“Putin. The War”, op.
cit., p. 18.](/nw/images/icon_footnoteCall.png)
require soldiers to obtain prior
permission for any holiday abroad and expressly forbid any participation
in combat during their holidays. In any case, the two reports presented
by Mr Kara-Murza show that at the most critical time, entire military
units were deployed to eastern Ukraine from Russia;
![(96)
See, for example, “An
invasion b any other name”, op. cit., p. 40 (with reference to the
testimony of a wounded Russian tank gunner interviewed by Novaya Gazeta); and “Putin.The War”,
op. cit., p. 18 (nine Russian soldiers detained by Ukrainian forces
on 24 August 2015; the Russian Defense Ministry stated that their
presence on Ukrainian territory (20 km from the border) was due
to them having “lost their way” on a training exercise.](/nw/images/icon_footnoteCall.png)
and
artillery attacks against Ukrainian positions (“sector D”) were
launched from Russian territory, across the border.
![(97)
“An invasion by any
other name”, op. cit., pp. 22-25; see also “Where did the shells
come from? Investigation of cross-border attacks in eastern Ukraine”,
prepared by International Partnership for Human Rights, Norwegian
Helsinki Committee and Ukrainian Helsinki Human Rights Union, 2016.](/nw/images/icon_footnoteCall.png)
The initial
“rollback” by the Ukrainian forces of the rebellion during the spring
and early summer of 2014 was brought to a standstill following the
“professionalisation” of the armed groups, which was also reported
by the HRMMU,
![(98)
See
paragraph 27 above.](/nw/images/icon_footnoteCall.png)
in particularly as of August
2014. The Ukrainian forces’ situation became more and more untenable –
which forced Ukraine to accept the disadvantageous terms of the
two ceasefire agreements brokered in Minsk. Such decisive military
power could clearly not be mustered by mere local militias who stole
some weapons from Ukrainian arsenals. Ukraine simply did not have
some of the modern, sophisticated weapons used by the “armed groups”,
which had never been exported before – for example, a recently modernised version
of the T72 main battle tank (T72 B3)
![(99)
“An invasion by another
name”, op. cit., pp. 25-26, 29 and 31; one of these tanks was even
captured by Ukrainian forces, at Ilovaisk.](/nw/images/icon_footnoteCall.png)
and
the “Tornado” multiple rocket launcher system. As Mr Kara-Murza
pointed out in January, the Russian Government itself acknowledged
the presence of the “Tornado” system when its representative signed
a protocol to the Minsk Agreement that referred to its withdrawal
from the line of contact.
55. For the purposes of the legal analysis regarding the Court’s
jurisdiction, it is irrelevant whether this military power was brought
to bear by Russia through the open deployment of military forces
or by “hybrid warfare” using “volunteers” or “soldiers on holiday”,
equipped with modern, high-powered military hardware. A senior separatist
commander admitted himself that the massive support provided by
Russia was decisive, that the militia units were “subordinate” to
“vacationers” and that the Russian “deliveries” were vital for them.
![(100)
See statements referred
to in note 95; see also the ICG report (“Ukraine: the Line”, note
76), which stresses the decisive role of Russia (p. 1).](/nw/images/icon_footnoteCall.png)
Such
(explicitly acknowledged) dependency generates effective control.
I would therefore not hesitate to attribute effective control over
the armed groups, and consequently over the areas controlled by
these groups, to Russia.
56. This dependency continues despite the reduced intensity of
the fighting following the ceasefire and the reported withdrawal
of part of the Russian “soldiers on leave” from Ukrainian territory.
This is true as long as a possible new “rollback” attempt by Ukrainian
Government forces is effectively deterred by the threat of another intervention,
which is clearly implicit in the military build-up recently observed
on the Russian side of the border.
![(101)
See ICG report (note
76), p. 1.](/nw/images/icon_footnoteCall.png)
Whilst the immediate, acute dependency
of the armed groups on military support in the form of “volunteers”,
weapons and ammunition is somewhat reduced, the progressive establishment
of the parallel structures observed by,
inter
alia, the HRMMU,
![(102)
See
paragraph 30 above.](/nw/images/icon_footnoteCall.png)
fulfilled the second alternative
developed by the Court’s case law for the justification of effective
control, namely control through a subordinate local administration.
As is the case with military presence, the existence of a subordinate
local administration is a matter of fact, which must be determined
by the Court in light of all available evidence. There can be no
doubt that the “DPR” and “LPR” are wholly dependent on Russia. During
our fact-finding visit, Ms Zelienkova and I came across so many elements
in support of this dependency that we spoke of “creeping hybrid
annexation” of these regions by Russia.
![(103)
See joint statement
by Ms Zelienkova and myself at the end of our fact-finding visit
to Ukraine on 8 April 2016: <a href='http:/pace.coe.int'>http:/pace.coe.int</a>.](/nw/images/icon_footnoteCall.png)
These elements include the economic
dependence of the de facto authorities, shown for example by the
delivery from Russia of basic goods (labelled “humanitarian assistance”,
delivered in large convoys of trucks removed from any control by
Ukraine). Alexander Khodakovsky, secretary of the “security council”
of the “DPR”, announced in September 2015 that the “humanitarian
convoys” represent only a tiny fraction of Russian’s financial assistance
and that in fact some 70% of the “DPR”’s budget comes from Russia.
![(104)
Interview with A. Khodakovsky
of 8 September 2015, cited by Mr Kara-Murza in his presentation
before the committee in January 2016 (text available on request
from the Secretariat).](/nw/images/icon_footnoteCall.png)
Even the power grid has
reportedly been re-oriented towards provision of electricity from
Russia.
![(105)
“<a href='https://freeukrainenow.org/2014/12/23/russian-power-will-keep-lugansk-lights-on-for-the-holidays/'>Russian
power keeps Lugansk lights on for the holidays</a>” (a pro-separatist website quoting local leaders).](/nw/images/icon_footnoteCall.png)
The
Russian rouble has become the currency most in use in the “DPR”
and “LPR”, and key officials of the de facto authorities are Russian
citizens.
![(106)
See
“Putin. The War”, op. cit., pp. 51-55, with numerous examples.](/nw/images/icon_footnoteCall.png)
We
were told that salaries of “DPR” and “LPR” officials are paid by
Russia, and even the history books used in the “people’s republic”
schools are from Russia (and present history accordingly). A German
media report gives details of the financial arrangements made and
even identifies specific chains of command from different ministries
in Moscow to their “counterparts” in the “people’s republics”, at
vice-ministerial level.
![(107)
“<a href='http://www.bild.de/politik/ausland/ukraine-konflikt/russia-finances-donbass-44151166.bild.html'>How
Russia finances the Ukrainian rebel territories</a>”, BILD, 16 January
2016; the ICG report (note 76) also sees Russia as “the sole source
of military, economic and other assistance to the two entities”.](/nw/images/icon_footnoteCall.png)
The
parallels to the situation of the de facto authorities in northern
Cyprus, Transnistria and Nagorno-Karabakh are obvious.
3.1.3. The United Kingdom as an additional
respondent State?
57. As to the applications lodged
(also) against the United Kingdom as one of the guarantee powers
under the 1994 Budapest Memorandum on Security Assurances,
![(108)
<a href='http://www.cfr.org/nonproliferation-arms-control-and-disarmament/budapest-memorandums-security-assurances-1994/p32484'>www.cfr.org/nonproliferation-arms-control-and-disarmament/budapest-memorandums-security-assurances-1994/p32484.</a>](/nw/images/icon_footnoteCall.png)
I am rather more sceptical. I do
consider the violation, by Russia as one of the guarantee powers,
of Ukraine’s territorial integrity, which Russia, the United States
and the United Kingdom had solemnly guaranteed in return for Ukraine
giving up the nuclear arsenal “inherited” from the Soviet Union,
as a sad violation of the international rule of law. The idea of
somehow making the Budapest Memorandum “justiciable” is an attractive
one; and in criminal law, a failure to act despite a legal duty
to prevent a violation of a legally protected interest can indeed
be the legal equivalent of an active violation of that interest.
But the European Convention on Human Rights is not a criminal law-type
instrument for “punishing” States. It is an agreement among States
to protect the rights of the persons under their jurisdiction. The
inhabitants of the conflict zone were only indirectly affected by
the failure of the signatories of the Budapest Memorandum to stop
the aggression (or to refrain from one). It will be difficult for
the applicants to establish that the United Kingdom not only had
a legal duty to intervene against Russia (despite the danger of
a major war?
Ad impossibilia nemo tenetur?)
but also somehow exercised “effective control” over the conflict zone
by merely failing to intervene in the conflict.
3.1.4. Exhaustion of internal remedies
58. In order to determine at which
point in time victims of human rights violations can successfully
seize the European Court of Human Rights, it will be necessary to
examine the effectiveness of any legal remedies available within
the States Parties concerned. According to the Court’s case law,
domestic remedies need exceptionally not be exhausted if they are
ineffective or if it would be too dangerous or not feasible for
other reasons for victims to first apply to local courts.
![(109)
See the summary of
the Court’s case law in the Chiragov judgment,
op. cit., paragraphs 115 and 116.](/nw/images/icon_footnoteCall.png)
59. Both in Crimea and in the “DPR” and “LPR”, the de facto authorities
have set up (or maintained) “courts” of their own, whilst the Ukrainian
authorities have “delocalised” justice by moving entire courts out
of the non-controlled areas and/or attributing jurisdiction to existing
courts in neighbouring, government-controlled regions. Victims of
human rights violations are in a dilemma: if they address themselves
to the legitimate “delocalised” courts, they may well obtain a judgment
in their favour (despite the administrative difficulties described
in paragraph 38 above), but it will not be executed by the de facto
authorities on their territory. If they seize the “courts” set up
by the de facto authorities, they are unlikely to have the benefit
of a fair hearing, especially if their complaint is related to the
consequences of occupation or annexation. Similarly, Russian courts
would be unlikely to accept jurisdiction over such cases, or provide
relief.
![(110)
The Strasbourg
Court came to a similar conclusion in the Chiragov judgment
(op. cit., at paragraphs 117-120) in the case of Azerbaijani citizens
displaced from the Nagorno-Karabakh region, who were not required
to first bring their cases before the “courts” set up by the de
facto authorities or before an Armenian court.](/nw/images/icon_footnoteCall.png)
I
would therefore tend to consider that the victims of alleged human
rights violations by the de facto authorities should be spared having to
address themselves to the “courts” run by these authorities.
60. Such a solution would also be the most consistent with the
non-recognition of the annexation of Crimea and of the unilateral
secession by the “DPR” and “LPR” from Ukraine in international law.
Admittedly, the International Court of Justice held in its 1971
Advisory Opinion on Namibia
![(111)
Legal
consequences for States of the continued presence of south Africa
in Namibia (south-west Africa) notwithstanding security council
resolution 276 (1970), <a href='http://www.icj-cij.org/docket/?sum=296&code=nam&p1=3&p2=4&case=53&k=a7&p3=5'>Advisory
Opinion of 21 June 1971</a>, Official summary.](/nw/images/icon_footnoteCall.png)
that not all acts
by the (South African) de facto authorities are void, in particular
not those favouring the rights of the population. In the words of
the ICJ,
“(…)
non-recognition should not result in depriving the people of Namibia
of any advantages derived from international co-operation. In particular,
the illegality or invalidity of acts performed by the Government
of South Africa on behalf of or concerning Namibia after the termination
of the Mandate cannot be extended to such acts as the registration
of births, deaths and marriages”.
61. The European Court of Human Rights, in its
Demopoulos v. Turkey judgment,
![(112)
Demopoulos
and others v. Turkey, Applications Nos. 46113/99, 3843/02,
13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, Admissibility
decision dated 1 March 2010 (Grand Chamber).](/nw/images/icon_footnoteCall.png)
referred
to the ICJ’s opinion when it recognised the “Immovable Property
Commission”, established by the
de facto authorities
in northern Cyprus, as an effective domestic remedy which Greek-Cypriot
applicants, who had been displaced by the Turkish intervention in
1974 and suffered violations of their property rights, had to exhaust
before taking their case to Strasbourg. The Court, which understandably
wants to avoid creating a legal vacuum and being forced to act as
a court of first instance in a large number of cases, pragmatically
states that “allowing the respondent State to correct wrongs imputable
to it does not amount to an indirect legitimisation of a regime unlawful
under international law”.
![(113)
Ibid.,
paragraph 96.](/nw/images/icon_footnoteCall.png)
62. This report is not the appropriate place to participate in
the discussion whether the Court’s
Demopoulos judgment
was too pragmatic at the expense of legal principle and whether
decisions of the “Immovable Property Commission”, empowered to substitute
restitution by monetary compensation, can be compared to the registration
of births or marriages.
![(114)
Elena
Katselli Proukaki, The Right of Displaced Persons to Property and
to Return Home after Demopoulos, Human Rights
Law Review (2014), 14(4), pp. 701-732.](/nw/images/icon_footnoteCall.png)
The
Court relies
inter alia on
the passage of time (since 1974), whilst the annexation and occupation
of Ukrainian territories go back only three years. Especially where
alleged human rights violations are linked directly to the occupation
and unlawful annexation, the Court would therefore be perfectly
free to distinguish such cases from the
Demopoulos precedent
– as it did in its
Chiragov judgment (see
paragraph 46 above).
3.2. Reference to the International Criminal
Court
63. Ukraine signed the Rome Statute
of the International Criminal Court in 2000, but has not yet ratified
it, following a ruling of the Constitutional Court in 2001 finding
ratification to be in conflict with the Constitution. I was told
during my meetings at the Verkhovna Rada in April 2016 that a modification
of the Constitution to enable ratification of the Rome Statute would
be part of the package of constitutional reforms under preparation,
though further delays were possible. But Ukraine has made two declarations
under Article 12.3 of the Rome Statute, which enables a State not
Party to the Rome Statute to accept the exercise of jurisdiction by
the ICC.
![(115)
ICC press
release, 17 April 2014, Ukraine accepts ICC jurisdiction over alleged
crimes committed between 21 November 2013 and 22 February 2014.](/nw/images/icon_footnoteCall.png)
The
first declaration explicitly covers alleged crimes committed between
21 November 2013 and 22 February 2014. On 8 September 2015, Ukraine
made another declaration extending the acceptance of the ICC’s jurisdiction
indefinitely.
![(116)
ICC
press release, 8 September 2015, <a href='https://www.icc-cpi.int/Pages/item.aspx?name=pr1146&ln=en'>Ukraine
accepts ICC jurisdiction over alleged crimes committed since 20 February
2014</a>.](/nw/images/icon_footnoteCall.png)
This means that the ICC now has
jurisdiction over the period of the most violent combats between
the separatist fighters and the Ukrainian forces, without limitation
in time – and without being limited to the alleged perpetrators
(all on the “pro-Russian” side) named in the declaration.
![(117)
Alexander Wills, <a href='http://jicj.oxfordjournals.org/content/early/2014/06/03/jicj.mqu033.full.pdf'>Old
Crimes, New States and the Temporal Jurisdiction of the International
Criminal Court</a>, Journal of International
Criminal Justice (2014); see also Valentyna Polunina,
Between Interests and Values – Ukraine’s Contingent Acceptance of
International Criminal Justice, International Nuremberg Principles
Academy, 2016. Ms Polunina examines the political background of
the two declarations, which may reflect failure to fully comprehend
the complementary character of international criminal justice and
respond to the deep distrust of the Ukrainian population in the
country’s own judicial system.](/nw/images/icon_footnoteCall.png)
64. On 25 April 2014, the ICC’s Office of the Prosecutor launched
a “preliminary examination” of the situation in Ukraine, which was
initially focused on alleged crimes against humanity in the context
of the “Maidan” protests, which are outside of my rapporteur mandate.
Following the second declaration under Article 12.3, the Office
extended the scope of the preliminary examination to include any
alleged international crimes committed on the territory of Ukraine
from 20 February 2014 onwards. In its most recent “Report on Preliminary Examinations
Activities”,
![(118)
Dated
12 November 2015: <a href='https://www.icc-cpi.int/ukraine'>https://www.icc-cpi.int/ukraine.</a>](/nw/images/icon_footnoteCall.png)
the Office of the Prosecutor indicated
that it had carried out three missions to Ukraine to hold meetings
with the Ukrainian authorities and representatives of civil society
and announced that it would “continue to gather information from
reliable sources in order to conduct a thorough factual and legal analysis
of alleged crimes committed across Ukraine, including in Crimea
and the Donbas, to determine whether the criteria established by
the Rome Statute for the opening of an investigation are met”.
![(119)
Ibid., paragraph 110.](/nw/images/icon_footnoteCall.png)
65. Among the international crimes listed in the Rome Statute,
the most relevant ones would be the war crimes under Article 8.
Some alleged human rights violations could also fulfil the definition
of a crime against humanity under Article 7. The “Elements of Crimes”
reproduced from the records of the Assembly of States Parties of
the ICC list the criteria for criminal liability under these provisions
in a self-explanatory way.
![(120)
<a href='https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf'>https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf</a>; see also the report on “Co-operation with the International
Criminal Court: towards a concrete and expanded commitment”, Doc. 14136 (rapporteur: Mr Alain Destexhe, Belgium, ALDE).](/nw/images/icon_footnoteCall.png)
Whether
“hybrid warfare” of the kind described above would fulfil the elements
of the newly defined crime of aggression is an issue that would
warrant a separate report – in any case, neither Russia nor Ukraine
are Parties to the Rome Statute, let alone the amendments adopted
in Kampala in 2010.
66. I do not consider it as part of my mandate to subsume my factual
findings under the relevant articles of the Rome Statute. This will
be the task of the ICC, in due course. But it is important to stress
already now that indiscriminate attacks, such as the rocket attack
on the market in Mariupol on 24 January 2015
![(121)
See paragraph 29.](/nw/images/icon_footnoteCall.png)
can
under certain circumstances give rise to prosecution as international
crimes or war crimes. The same can of course be true for any indiscriminate
or disproportionate attacks committed by the Ukrainian forces involved
in the operations termed “anti-terrorist” by the authorities in
Kyiv.
67. There can be no doubt that a situation of armed conflict existed
during the period of intense fighting in eastern Ukraine until the
conclusion of the Minsk II ceasefire agreement and even far beyond.
Despite the ceasefire agreement, which was never really fully respected,
the threat of a further military escalation is still very real.
Military action by both sides will therefore have to be assessed
in light of the principles of international humanitarian law, in
particular the principles of distinction (between combatants and
non-combatants), proportionality (between the expected military
gain and the “collateral damage” to civilians) and precaution (reasonable
care taken to minimise unavoidable and proportionate “collateral
damage”). Military action violating any of these principles, for
example indiscriminate artillery attacks against residential areas,
but also the use of “human shields” by placing weapons and other
likely targets in the midst of civilians, can qualify as war crimes,
which give rise to the individual criminal responsibility of fighters
and their commanders.
4. The amnesty clause under the Minsk
II Agreement – an obstacle to accountability?
68. The Minsk II Agreement, signed
on 12 February 2015 after dramatic negotiations involving the German Chancellor,
the French, Russian and Ukrainian Presidents as well as representatives
of the European Union, the OSCE and – indirectly – of the two self-proclaimed
“people’s republics”, includes an amnesty clause to “ensure pardon
and amnesty by enacting the law prohibiting the prosecution and
punishment of persons in connection with the events that took place
in certain areas of the Donetsk and Luhansk regions of Ukraine”.
![(122)
Full text of the Minsk
Agreement available at: <a href='http://www.elysee.fr/declarations/article/package-of-measures-for-the-implementation-of-the-minsk-agreements/'>www.elysee.fr/declarations/article/package-of-measures-for-the-implementation-of-the-minsk-agreements/.</a>](/nw/images/icon_footnoteCall.png)
69. Given the dramatic circumstances in which the agreement was
concluded, it is obvious that some issues require clarification
and interpretation.
![(123)
See,
for example, Gustav Gressel, <a href='http://www.ecfr.eu/article/commentary_the_minsk_ii_agreement_the_long_game429'>“The
Minsk II agreement – the long game</a>”, European Council on Foreign Relations, 13 February
2015; Neil MacFarquhar, <a href='http://www.nytimes.com/2015/02/13/world/europe/ukraine-talks-cease-fire.html?_r=0'>Ukraine’s
latest peace plan inspires hope and doubt,</a>New York Times, 2 February
2015.](/nw/images/icon_footnoteCall.png)
This includes the amnesty clause, which
gave rise to some worries soon after the agreement was published
– in particular in the Netherlands, where it was feared that the perpetrators
of the downing of flight MH17 could be covered by the amnesty.
![(124)
See, for example, <a href='http://www.euractiv.com/sections/europes-east/hastily-signed-minsk-agreement-forgot-perpetrators-mh17-312119'>“Hastily
signed Minsk agreement forgot the perpetrators of MH17”</a>; German Chancellor Merkel is quoted as saying that in
her understanding there was “no obligation” that the amnesty include
“everyone”.](/nw/images/icon_footnoteCall.png)
For the interpretation of the Minsk
II amnesty clause, recent developments and trends in international
and international human rights law must be taken into account, which
favour accountability for serious human rights violations and abhor impunity.
![(125)
See, for example, <a href='http://www2.ohchr.org/english/ohchrreport2011/web_version/ohchr_report2011_web/allegati/10_Impunity.pdf'>Impunity
and the rule of law, OHCHR, 2011</a>, and <a href='https://www.icrc.org/eng/resources/documents/article/other/57jqhj.htm'>Mary
Griffin, “Ending the impunity of perpetrators of human rights atrocities,
a major challenge for international law in the 21st century”</a>, International Review of
the Red Cross, 30 June 2000; <a href='http://www.coe.int/t/dghl/standardsetting/hrpolicy/Publications/Impunity_en.pdf'>“Eradicating
impunity for serious human rights violations, Guidelines and reference
texts</a>”, Council of Europe, Strasbourg, 2011; see also <a href='http://www.ohchr.org/Documents/Countries/UA/9thOHCHRreportUkraine.pdf'>OHCHR
Report on the Human Rights Situation in Ukraine</a>, 1 December 2014 to 15 February 2015, p. 3, paragraph
4 (and p. 7, paragraph 22): “Regarding the provision on amnesty
for those involved in the conflict, OHCHR reiterates the long-standing
position of the United Nations that amnesty must not be granted
for international crimes, including gross violations of international
human rights and humanitarian law.”](/nw/images/icon_footnoteCall.png)
Any clause
that provides an exception from the rule of accountability for perpetrators
of serious human rights violations must be interpreted restrictively.
This should exclude persons from the scope of the amnesty clause
who committed or ordered murder, torture or war crimes, in particular
those reaching the threshold of international crimes covered by
the Rome Statute. The amnesty clause would still remain applicable
by shielding those who instigated the armed rebellion and those
who participated in the fighting in accordance with the rules of
international humanitarian law (
ius in
bellum) from the criminal responsibility they would normally
incur for high treason and the killings and destruction caused by
taking up arms against their government. But it would not give impunity
to those who committed serious crimes on the occasion of the conflict.
Such impunity would constitute a serious obstacle to reconciliation
and peace.
70. As regards the possible role of the ICC, similar arguments
are likely to come into play. Unjustified amnesties for perpetrators
of international crimes are even considered to positively underpin
the ICC’s subsidiary competence in that they show that the authorities
of the State concerned are either unwilling or unable to prosecute
the perpetrators themselves.
![(126)
See,
for example, <a href='http://www.peaceandjusticeinitiative.org/implementation-resources/amnesties-and-the-icc'>The
Peace and Justice Initiative, “Amnesties and the ICC”</a>; <a href='http://www.jstor.org/stable/25659262?seq=1'>www.jstor.org/stable/25659262?seq=1#page_scan_tab_contents.</a>](/nw/images/icon_footnoteCall.png)
71. It would appear that the Russian side also interprets the
amnesty clause in the Minsk II Agreement restrictively, as shown
by the prosecution of Ukrainian helicopter pilot Nadiia Savchenko
for allegedly being involved in the killing, in the combat zone,
of two Russian journalists. According to statements by the Russian authorities,
the amnesty clause did not apply to her. One argument put forward
by the prosecution is that the amnesty provision in the Minsk Agreement
applied only to persons in the Donbas region, whilst Ms Savchenko was
(now) in Russia.
![(127)
<a href='http://www.interpretermag.com/russia-update-february-13-2015/'>Catherine
Fitzpatrick, “Interpreting the Minsk Agreement Regarding Amnesty
and Release of Prisoners”</a>, <a href='http://www.unian.info/politics/1070264-lavrov-savchenko-may-be-granted-amnesty-after-going-on-trial.html'>“Lavrov: Savchenko
may be granted amnesty after going on trial”</a>; see also <a href='http://www.interfax.com/newsinf.asp?id=588127'>“Savchenko
amnesty depends on stated article of Criminal Code in final charge
– justice minister”; </a>Ms Savchenko insists that she was captured by separatist
fighters on Ukrainian territory and then abducted to Russia, whereas
the Russian authorities claim that she crossed the border voluntarily.](/nw/images/icon_footnoteCall.png)
This
argument would condemn all fighters to stay in the conflict zone,
or else they would lose the benefit of the amnesty. A statement
by Russian Foreign Minister Lavrov on the Savchenko case also shows
the narrow view taken by Russia regarding the amnesty clause:
“But to grant amnesty to a person,
[the case] should be brought to the court and the court should take the
decision. If the court decides that she is not guilty, then probably,
amnesty will apply to her, if I can now interpret the Minsk Agreements
in this way.” ![(128)
Cited
in <a href='http://tass.ru/en/russia/791032'>http://tass.ru/en/russia/791032.</a>](/nw/images/icon_footnoteCall.png)
72. This interpretation seems somewhat surprising to me: once
a court of law finds a person not guilty, there is hardly any need
for an amnesty.
5. Conclusions
5.1. Regarding the human rights situation
in Crimea
73. In sum, it can be safely said
in light of all the reports by intergovernmental as well as non-governmental observers
that the situation of Crimea is characterised by a climate of intimidation
fostered by a number of high-profile killings, abductions and beatings
that have remained ominously unpunished. The referendum on “reunification”
with Russia was clearly affected by this climate of intimidation
to the point that I would consider this vote as a violation of the
right to free and fair elections.
![(129)
See Luzius Wildhaber
(note 85), p. 386: the former President of the European Court of
Human Rights points out that the official results (83% participation,
97% in favour of accession to Russia) are “quite implausible. Crimea
was inhabited by some 58-59% ethnic Russians, 24-25% Ukrainians
and 12-13% Crimean Tatars. The Crimean Tatars had called for a boycott
of the plebiscite, and certainly not all Ukrainians had opted for
an accession to Russia. Members of Putin’s Human Rights Council
communicated much more credible figures, i.e. that some 30-50% had
taken part in the vote, and out of these, some 50-60% had opted
to accede to Russia (roughly 22% of the potential voters)”.](/nw/images/icon_footnoteCall.png)
Actual
or presumed Ukrainian loyalists are subject to different forms of
intimidation and harassment. The entire population is pressured
into obtaining Russian passports in order to secure access to such
basic services as health care and housing. The Crimean Tatars, in
particular, have been subjected to a number of repressive measures
targeting their historical self-government bodies and cultural and
media institutions (dissolution of the Mejlis and its local branches;
closure of the Tatar television channel ATR, prosecution of political
and cultural leaders of the Tatar community on treason, espionage
or “extremism” charges). Numerous Tatars have therefore felt obliged
to leave their homeland, and others dare not uphold their historic
traditions to such an extent that the very existence of the Crimean
Tatar community as a distinct ethnic and cultural group is threatened.
5.2. Regarding the human rights situation
in the “LPR” and “DPR”
74. The picture of the human rights
situation in the “DPR” and “LPR” painted by the reports summed up above
taken together is rather depressing. This picture has been confirmed
by the impressions Ms Zelienkova and I collected during our fact-finding
visit to the Donbas and by the experts who testified before our
committee in January, April and June 2016. I find it equally depressing
that these powerful reports, based on long-term, professional monitoring
by hundreds of neutral observers duly mandated by the international
community have had such little impact on Western public opinion
and policies. Do we not want to know what is going on so that we
can continue to do nothing (or next to nothing) to stop it?
75. It is undeniable that numerous human rights violations took
place during the most violent phase of the conflict, up until the
Minsk II Agreement, in February 2015, and that such violations continued
and are still continuing after the ceasefire agreement.
76. First of all, there is still heavy loss of life and property
due to shelling, especially in some well-known hotspots around the
line of contact.
![(130)
In
particular, according to the SMM’s reports, the vicinity of Avdiivka
and Yasynutava, the northern outskirts of Donetsk City, Horlivka,
Shyrokyne (east of Mariupol), Stanytsia Luhanska Bridge area (see,
for example, the OSCE SMM Weekly Report dated 20 July 2016 and its
Daily Report 181/2016 dated 1 August 2016).](/nw/images/icon_footnoteCall.png)
Despite
the restrictions on their movement imposed on the OSCE observers
– imposed mostly by the “armed groups” of the so-called “people’s
republics” – the OSCE SMM has documented numerous ceasefire violations
where the crater analysis shows that the shelling originated in rebel-controlled
areas. As a result, civilians are exposed to dangers to life and
limb, especially those still living near the line of contact and
those who must spend many hours at the checkpoints waiting to cross
into or out of the “people’s republics”.
77. Secondly, acts of repression and intimidation such as extrajudicial
killings, unlawful arrests, incommunicado and/or unacknowledged
detentions, torture and ill-treatment as well as the taking of hostages still
occur. Whilst less numerous than during the most violent phase of
the conflict, such violations are encouraged by the prevailing climate
of impunity. I am dismayed by the well-documented cases presented
by Amnesty International and Human Rights Watch showing that such
crimes have also been committed by representatives of the Ukrainian
authorities, in particular the SBU. It is paramount that Ukraine
sets an example by investigating any such allegations and prosecuting
the perpetrators, in line with Articles 2 and 3 of the European
Convention on Human Rights as interpreted by the Court. The temporary
derogation made by Ukraine under Article 15 of the Convention does
not concern the rights to life and protection from torture guaranteed
by Articles 2 and 3. As a first step, both sides should establish
lists of all places of detention and open them up to inspection
by national and international monitors. Monitors must also be given
swift access to places that are merely suspected of holding, or
having held detainees.
78. Thirdly, the inhabitants of the “DPR” and “LPR” have serious
social and administrative problems, which must urgently be resolved
in a pragmatic way. It is legitimate that the Ukrainian authorities
take precautions in order to avoid fraud (including the collection
of pensions and other social payments both from the de facto authorities and from Ukraine)
and the illicit recuperation of funds transferred to the “people’s
republics” by the de facto authorities.
But the necessary checks must be carried out in such a way as to
avoid blocking vital payments for extended periods of time. When
we raised these issues with representatives of the Verkhovna Rada
in April, we were told that the relevant laws had already been adopted
and that their proper implementation by the competent ministries
was under way. The most recent reports by international monitors indicate
that important issues have still not been resolved. For the sake
of a durable solution of the conflict, it must be ensured that the
inhabitants of the non-government-controlled areas and of the “grey
zone” are not made to feel abandoned by their government. We noticed
during our visit in April that such feelings still prevailed. It
must also be recalled that the de facto authorities
and their Russian handlers are responsible, under international
law, for the safety and welfare of the population in the territories
under their de facto control. They
are under a duty to provide basic infrastructures, commodities and
services, including food, housing and health services. This also
means that they must refrain from expropriating inhabitants and
displaced persons by creating re-registration requirements for property
which can only be fulfilled by the inhabitants subjecting themselves
to unlawful rules and by displaced persons exposing themselves to
the risks involved in returning to the regions under the control
of the de facto authorities.
79. Last but not least, lack of access to justice is a serious
problem for the inhabitants of the “DPR” and “LPR” as well as some
persons living in the government-controlled areas. Ukraine has “delocalised”
courts situated in the areas over which the government has lost
control, and/or the jurisdiction for cases concerning these areas
has been attributed to existing courts in neighbouring, government-controlled
areas. But many case files were lost in the sometimes chaotic move,
or are now inaccessible. Access to the delocalised courts is difficult
for residents of the “people’s republics”, whereas the “judicial”
services offered by the newly established parallel structures in
the “DPR” and “LPR” are not only illegitimate, but also lacking
professionalism and independence. The resulting problems are particularly
difficult to resolve without a return to the rule of law upheld
by the legitimate authorities. Meanwhile, the Ukrainian authorities
should do what is in their power in order to enable the “delocalised”
courts to function properly, by providing adequate staff and other
resources.
5.3. Regarding the implementation of the
Minsk Agreements: link between ceasefire and elections
80. The Minsk Agreements clearly
have the merit of considerably reducing the loss of life, both among combatants
and civilians. But the ceasefire has never been fully implemented.
The OSCE observers note numerous violations, but they are unable
to do anything about them. The local population is well aware of
their inability to act. During our “townhall meeting” in Mariupol
with local citizens and grass-roots activists, we heard numerous
complaints about nightly artillery shelling terrorising the population,
in particular in the so-called “grey zone” on both sides of the
contact line. Our question regarding possible help from the OSCE
observers was greeted with bitter laughter. One of the locals said:
“They are not allowed to leave their accommodation at night, as
the other side knows full well, and when they turn up in the morning,
the damage is done and the observers can only make sure that our
side does not return fire.” The Minsk Agreements, as they stand,
have not resolved the conflict, at best they have frozen it. As
there is nothing better in sight, their implementation by both sides
is necessary. But it is not sufficient: without the restoration
of the legitimate, lawful authorities there can be no rule of law,
nor any effective protection of human rights in this region. This
requires re-establishing the full control of Ukraine over its border
with the Russian Federation and holding truly free and fair regional
elections – as foreseen by the Minsk Agreement. But the conditions
for such elections have yet to be created. They require proper security,
during the campaign and during the election itself. This condition
is far from fulfilled, as is shown, for example, by the fact that
the OSCE was unable to provide security even for a short visit of
our small delegation to the “people’s republics”. Free and fair
elections also require freedom of speech and information, including
access to the media both for the “pro-Ukrainian” and the “pro-Russian”
side. It is hard to see how this can be achieved without the prior
establishment of law and order by Ukraine – under strong international
supervision to avoid any intimidation or retaliation “the other
way round”. The very fact that such a solution can realistically
only be achieved in agreement with Russia and not against Russia
is, incidentally, a clear indication of who really pulls the strings
in this conflict, on the “pro-Russian” side.
5.4. Regarding legal remedies
81. As I see it, the best available
legal remedies provided to victims of alleged human rights violations
both in the territory of Ukraine outside the control of the Ukrainian
authorities – e.g. in Crimea and in the so-called “people’s republics”
of Donetsk and Luhansk are those provided by the European Convention
on Human Rights. Given the effective control of the Russian Federation
based on the numerous indications presented above (paragraphs 52-56),
whether admitted by Russia (as in the case of Crimea) or not (as
in the “DPR” and “LPR”), victims of alleged human rights violations
should be able to make applications both against Russia – under
the Court’s case law attaching jurisdiction to effective control,
exercised either directly, through a military presence, or indirectly,
through a dependent local administration – and against Ukraine,
to whose territory these regions belong under international law.
82. I have also argued that in cases linked to the annexation
of Crimea or the action of the de facto authorities of the “DPR”
and “LPR”, the alleged victims should not be obliged to first exhaust
such internal remedies as the “courts” run by the de facto authorities.
These cannot be considered as “effective” remedies in that they
lack the necessary degree of independence and/or professionalism.
83. Concerning the accountability of individual perpetrators (and
their commanders), it is first and foremost up to the law-enforcement
authorities both in Ukraine and in Russia to fully and swiftly investigate
alleged crimes and prosecute the perpetrators robustly, without
regard to their allegiance in the conflict. Whilst the Ukrainian
side has made some progress, it must do more, in particular regarding
unlawful detentions and torture allegedly committed by members of
the SBU. All official and alleged unofficial places of detention
must urgently be made accessible to national and international monitors.
84. The International Criminal Court potentially has an important
role to play since Ukraine has accepted its jurisdiction for all
international crimes committed on the territory of Ukraine since
21 November 2013. Whilst the progress of the “preliminary examination”
launched by the ICC’s Office of the Prosecutor seems to be rather limited
so far, the potential scope is considerable, in particular as regards
the conflict in the Donbas.
85. Last but not least, accountability for serious human rights
violations or international crimes should not be hampered by the
amnesty clauses in the Minsk Agreements, which must be interpreted
in such a way as to exclude perpetrators of serious crimes committed
on the occasion of the conflict. Such a narrow interpretation of
the amnesty clauses is also supported by statements from senior
representatives of the Russian authorities. In my view, true reconciliation
and lasting peace require justice for the victims of the conflict.