How and for what may Crimeans sue Russia – lawyer’s advice
You do not have to wait until the start of international trial over the state-occupier to hold Russia accountable for its actions in Crimea. You can submit individual complaints to the European Court of Human Rights (ECHR).
Many Crimeans can do this. After all, Russia has violated several articles of the European Convention on Human Rights by occupying Crimea.
Sergiy Zayets, expert of the Regional Centre for Human Rights, in an interview to the Human Rights Information Centre explained exactly which European Convention articles has Russia violated in the Crimea.
According to the expert, Russia will be obliged to pay each Crimean, who will file a complaint against the state and win a case in the ECHR.
“The range of issues is large enough. We help the residents of Crimea to lodge complaints for free. In general, we undertake cases that have little resonance in the mass media. Usually those are cases about violations, which many residents of the Crimea face in everyday life. This is due to the fact that situation with the occupation of Crimea is unique. There was no similar precedents since the Second World War”, – said Sergiy Zayets.
REASONS TO GO TO COURT
So, what human rights violations can be a reason to apply to the European Court of Human Rights.
Infringement of property rights
“Russian infringement of property rights in the Crimea involves a number of problems. This is so-called “nationalization” of Ukrainians’ property and destruction of civilian property. For example, when occupation authorities blew up 16-storey house at Khrustalnyy Cape (Crystal Cape) in Sevastopol. There are systematic violations associated with the re-registration of transport and real estate in accordance with the laws of the Russian Federation. Russian Federation violates the property rights, since without such re-registration it is impossible to use a car and sell it, impossible to perform operations with real estate”, – said the lawyer.
Restriction of movement
It is also possible to make a complaint to the ECHR about cases of travel restrictions. Establishment of Russian control over those who crossed the Isthmus of Crimea and control over the duration of stay in the Crimea is interference with freedom of movement, – said Sergiy Zayets.
He said that it is also true in the cases when Russian Federation does not allow the person to pass on Crimean territory.
“The definite reason to go to European court is the loss of Ukrainian passport on the territory of Crimea. Because if the person lost Ukrainian documents in the Crimea, then he cannot depart from Crimea. Russian authorities are not letting these people from Crimea. They are forced to obtain documents on the territory of the Russian Federation (Rostov) about the loss of Ukrainian passport. And then, when person with these documents tries to depart from Crimea again he is fined by Ukrainian border guards. Penalty of 1700 hryvnias is imposed for the fact that person traveled from Crimea to the Russian Federation by bypassing Ukrainian checkpoints.
In this case, Ukrainian and Russian actions are qualified as freedom of movement violation and people have greater chances of winning the case at the ECHR against both countries”, – said the lawyer.
Expulsion from the territory of the home country
Deportation of a person from the territory of Crimea is also a reason for the complaint on Russia to the European Court. This applies to those who live in the Crimea, but does not have Russian citizenship and residency. Such people can be deported from the Crimea for violation of the 90- day period of stay on the territory of the Russian Federation.
“The cases of expulsion of citizens from the territory of the home country are very unusual. It is a violation of Article 3 of Protocol №4 to the European Convention. This rule prohibits the expulsion of citizens from the territory of home country. This also applies in the situation of the occupied territory. Especially in relation to Ukrainian prisoners, who are located on the Crimean territory. When the Russian Federation sends these people to serve their sentence on its territory against their will, it violates this article of the Convention”, – explained the expert.
Violation of the rights to a fair trial and the legality of punishment
Another reason to go to court are the cases of those prisoners, who had been detained before the occupation on decisions of Ukrainian courts.
“In my opinion, it is violation associated with the fact that the Russian Federation does not have the authority to implement court decisions that were rendered by courts of Ukraine. For example, after the occupation of Crimea, Russian Federation continued detention of those who in the Simferopol SIZO (pre-trial detention centre) at that time. Although, Russian government had no authority to do so”, – said Sergiy Zayets.
According to the Geneva Conventions, Russia is obliged to maintain law and order in the occupied territory. However, Crimean courts cannot render the punishment that exceeds the standards set by Ukrainian legislation.
“But our organizations has cases, where imposed punishment is greater than the one that would be imposed under the laws of Ukraine”, – said the lawyer.
According to him, conviction of Crimean people under the Criminal Code of the Russian Federation can also be regarded as a violation of Article 7 of the European Convention.
“Criminal Code of the Russian Federation has never been published in the Crimea. The Fourth Geneva Convention states that, in theory, Criminal Code of Ukraine should remain in force in the occupied territory. Amendments can be valid only if they are published. Occupation authority may impose liability for certain acts, but only when it is strictly necessary. Complete replacement of one Criminal Code to another contradicts the Geneva Convention”, – explained the lawyer.
He said that, according to the Article 7 of the European Convention, punishment of the person can only be based on the law. This means that the Russian Federation has no right to hold people as criminally accountable for acts committed prior to the occupation.
Lawyer cites the “February 26 case” as an example. In this case people are judged for actions committed prior to the occupation. He also cited the case of Emil Kurbedinov, who was prosecuted for publication made in 2013.
“There are many of such cases. Such actions also violate the Convention (IV) relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention). According to the Convention, occupying power has no right to prosecute people for acts and statements that have been made before the beginning of the occupation. Especially if it involves the expression of views”, – said the expert.
Restriction on freedom of expression
Freedom of expression is also constantly limited in the Crimea. And those who Russian Federation has brought to responsibility for their views can apply to the court for compensation for moral harm.
“To restriction of this freedom applies the closure of media, changing TV and radio frequencies, whereby the organizations that were not loyal to the Russian authorities simply had no access to the broadcast. Re-registration of mass media, introduction of special order against online media and bloggers also applies to the violation of this article”, – said Sergiy Zayets.
He cites as an example Crimean journalist Anna Andrievskaya, whose house was searched, although at that time she lived on the mainland Ukraine and publication, which Russian government has disliked, was not made in the Crimea.
Interference with privacy and family life
Another global rights violation is access of the Russian Federation to the personal data of all Crimean people.
“The personal data of all citizens of Ukraine, who lived and were registered on the territory of Crimea, illegally turned out to be at the disposal of the Russia authorities. This is data on place of residence and birth, information on military records, autobiographies, bank accounts, information about acts of civil status. All these actions are interventions in private life”, – said the lawyer.
Russian Federation has announced all Crimean residents, who did not officially renounce Russian citizenship, as Russian citizens. Thus, based on the obtained personal data Russian Federation has automatically declared those people, who were not living in the Crimea at the time of occupation, but had Crimean registration, as Russian citizens.
Sergiy Zayets named a number of issues that proved problematic for Ukrainians in Crimea, who officially renounced Russian citizenship. According to occupation authorities, 3500 people on the peninsula renounced Russian citizenship.
“They were automatically received the status of foreigners, which is clear violation of Article 8 of the European Convention (right for respect for private and family life). Now, migration control was established in relation to these people and they must either constantly enter and leave Crimea or receive residence permit. Basically, these people need to receive permit from the authorities to remain living at their homes. Their political rights were also restricted (e.g. the right to participate in the management of the company) and the freedom of peaceful assembly, since they are considered as foreigners by the Russian Federation. If they will not comply with all these restrictions, then they can be deprived of the residence permit and deported from the peninsula”, – said the lawyer.
An imposed citizenship is also a gross violation of Article 8 of the European Convention. Crimean, who received such citizenship, now has to obey the laws occupant country, which means, for example, the obligation to serve in army. In situation of armed conflict between Russia and Ukraine, the automatic assignment of Russian citizenship to people who consider themselves Ukrainians restricts the rights of Crimean people and in relations with Ukraine.
“The rights of children, who were deprived from parental care and kept in orphanages, were especially crudely violated. These children simply had no opportunity to renounce Russian citizenship. In this case, Governmental Commissioner for the European Court of Human Rights may apply to the ECHR with complaint about the protection of children’s rights”, – said Sergiy Zayets.
Restrictions on freedom of peaceful assembly and the pressure on the freedom of religion
People who are pressured for their faith can also go to court. First of all, Muslims suffer from the restrictions of freedom in the Crimea. Representatives of the Ukrainian Orthodox Church of the Kyiv Patriarchate are also subjected to systematic harassment.
Restrictions of freedom of peaceful assembly are another range of violations for which the Russian Federation could and should be brought to justice.
“This is especially true in relation to the Crimean Tatars. When searches are carried out people gather to support those, whose houses are searched. And then protocol on unsanctioned rally is made against those who were present”, – explained the expert.
He believes that cases of such violations must also be brought to court.
Lack of pension payments
Complaints about non-payment of pensions can also be submitted to the ECHR but against Ukraine. Those citizens of Crimea who were receiving pensions formed at the expense of insurance can turn to the court.
“After the case of Pichkur against Ukraine it is possible to say that such a pension is a private property. The exceptions are only those who received disability pension, due to the loss of a support, and other social pensions. These people, probably, may not be able to require from Ukraine the payment of pensions through European Court”, – said the lawyer.
Anyhow, Pichkur case allows to raise the issue of discrimination based on residence, as it concerns citizens of Ukraine who have a particular connection to the occupied territory.
But state of Ukraine is obliged to pay pensions to those residents of Crimea who paid premiums to the pension fund for all their lives. And it does not matter whether they are already receiving Russian pensions or not, – said the lawyer.
“According to the Geneva Convention, the occupying power must support the occupied territories. As for Ukraine, understandably, the authorities of our country want to save on Crimean people. But in fact, Crimea is the territory of Ukraine, Ukrainian citizens are living there and the pensions must be added and paid, since they have earned it here. Interstate agreements are not working here, because Crimea is not the territory of the Russian Federation. And if the occupation authorities want to additionally support Ukrainian pensioners it does not relieve the obligations of Ukraine to pay pensions to its citizens”, – explained the expert.
But before applying to the European Court you must first appeal against such a non-payment of pensions in the Ukrainian courts. And there is a strong likelihood that such cases will be won at the national level, – he said.
HOW TO FILE A COMPLAINT TO THE EUROPEAN COURT OF HUMAN RIGHTS?
Preparation of complaint to the European Court is consuming and laborious process. Sometimes it involves litigation of the case in local courts, appeals against the decisions of these courts. To appeal to the European Court you must first exhaust all effective means of legal defense. If the complaint is being prepared against the Ukraine, it must first pass all three judicial instances in our country.
The situation with Russia is not so unambiguous.
“In most cases, before filing a complaint to the ECHR, you must first pass all three judicial instances in the Russian Federation, which includes the Supreme Court of the Russian Federation. Because in civil cases, for example, the last instance is the Supreme Court of the Russian Federation, which was formed and existed prior to the occupation of the Crimea and its legitimacy is clear.
The situation in criminal cases is slightly different. According to the practice of the ECHR regarding the last instance court of Russia, to be exhausted, is the appeal court.
There are number of situations that do not require addressing in the national authorities of the Russian Federation. For example, if in the case recognition of the Crimea as part of the territory of Ukraine is required from the Russian court. Among these cases, are the cases related with deportation of prisoners from Crimea to Russia. From the point of view of the Russian legislation, there are no violations in these actions, because it is relocation of citizens “on the territory of Russia”. But from the point of view of the European Court of Human Rights – such violations may be established”, – said the lawyer.
The difficulties in applying to the ECHR can arise with a correct formulation of the complaint. In Crimea there are often non-standard situations, the like of which has not been in the practice of the European Court. Therefore, many complaints have to be additionally explained and evidence must be collected. There must be a critical approach to the collection of such materials. European Court has strict rules and will not help the applicants with additional questions.
Therefore, it is best to consult with lawyers, who are acknowledged with these particularities, while preparing the complaint.
“Regional Centre for Human Rights” provides free assistance to residents of Crimea on all these issues.
If you are resident of Crimea and think that you were subjected to at least one of the above-mentioned violations and have a proof of this fact, then you can apply for a free consultation with the lawyers of the Regional Centre for Human Rights.
Phone number: +38 (044) 284-30-33
Recorded by Iryna Sedova, specially for the Human Rights Information Centre
The article was prepared with collaboration with the Institute for War and Peace Reporting