Case of Crimea - VOLYA Institute

Transcription

Human Rights
on Occupied Territory:
Case of Crimea
by Ivanna Bilych, Andreas Neumann,
Victor C. Okpara, Ajitha Pichaipillai,
Matheus de Moura Sena, and Olena Sharvan
On behalf of Razom, a Ukrainian-American
human rights organization
New York 2015
All inquiries please direct to: Razom, Inc.,
140 2nd Avenue, Suite 305, New York, NY 10003
or [email protected]
PDF version of this document is available
on the website: razomforukraine.org
Publication design: Oleksandr Bezobchuk.
© 2015 Razom, Inc. All rights reserved.
New York, 2015
Table of Contents
List of Abbreviations........................................... 4
Acknowledgments................................................ 5
Executive Summary............................................. 6
I. Introduction....................................................... 8
II. Human rights guarantees on occupied
territory.......................................................... 13
1. Overview of international and domestic law.... 13
International Humanitarian Law...........................14
International Human Rights Law..........................15
Ukrainian Law on the Legal Regime of an Occupied Territory.............................................17
The Russian Legal System.......................................19
2. Civil and political rights................................... 20
1. Right to life..........................................................20
2. Freedom from torture or any other
inhuman treatment...........................................22
3. Access to justice...................................................23
4. Right to nationality.............................................25
5. Right to privacy and family rights....................26
6. Liberty and security of person..........................27
7. Freedom of thought............................................28
8. Freedom of speech..............................................30
9. Freedom of assembly.................................. 33
10.Right to truth.....................................................35
11.Right to participate in state governance
(including voting rights)...................................37
12.The right to equality before the law
and freedom from discrimination...................39
3. Social, economic and cultural rights................ 39
1. Right to own things (right to property)...........39
2. Right to social security.......................................41
3. Right to an adequate standard of living...........41
4. Right to speak one’s own language
and to maintain one’s own culture
and tradition.......................................................42
5. Right to education...............................................45
6. Right to health.....................................................46
III.Remedies for human rights violations... 49
General remedies.......................................................49
Specific remedies.......................................................50
IV. Conclusions and recommendations......... 51
Recommendations for the
Ukrainian government............................................51
Recommendations for Crimean de facto
authorities and the Russian government..............52
Recommendations for the international
community...............................................................53
Recommendations for the people
and NGOs on the ground.......................................53
3
Human Rights on Occupied Territory: Case of Crimea
List of Abbreviations
CAT Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
ICESCR International Covenant on Economic,
Social and Cultural Rights
CED International Convention for the Protection of All
ICJ International Commission of Jurists
Persons from Enforced Disappearances
CEDAW Convention on the Elimination of All Forms
of Discrimination against Women
CERD Convention on the Elimination of Racial
Discrimination
CoE Council of Europe
CROC Convention on the Rights of the Child
CSCE Conference on Security and Cooperation in Europe
ICJ International Court of Justice
ILO International Labor Organization
NGO Non-governmental organization
OECD Organization for Economic Co-operation and
Development
OHCHR Office of the High Commissioner for Human
Rights
ECHR European Convention on Human Rights
OSCE Organization for Security and Cooperation in
Europe
ECtHR European Court of Human Rights
RSFSR Russian Socialist Federative Soviet Republic
ESC European Social Charter
UDHR Universal Declaration of Human Rights
ESC Economic, social and cultural rights
UkrSSR Ukrainian Soviet Socialist Republic
EU European Union
UN United Nations
FEZ Free Economic Zone
UNDP United Nations Development Programme
FMS Russian Federal Migration Service
UNDHR Universal Declaration of Human Rights
HRC Human Rights Council
UNHRC United Nations Human Rights Committee
HRMMU United Nations Human Rights Monitoring
Mission in Ukraine
UNICEF United Nations Children’s Fund
HRW Human Rights Watch
UNPFII United Nations Permanent Forum on
Indigenous Issues
ICC International Criminal Court
WHO World Health Organization
ICCPR International Covenant on Civil and
Political Rights
4
Acknowledgments
Acknowledgments
We would like to thank Mary Holland, Research Scholar
and Director, NYU Graduate Lawyering Program, for
her contribution to this report and manual. With her
advice and expertise, Mary was a great inspiration. We greatly appreciated David Glasgow Public Interest
Law Center Fellow at NYU for his outreach and student
guidance in coordinating the pro-bono requirement
program. We are grateful to Jesus Ballivian of the NYU
Graduate Lawyering Program for all his technical assistance. We would also like to thank Matt Mosner of PILnet and
Ethan S. Burger, Adjunct Professor, Washington College of Law (American University) for their analysis and
critique of an earlier draft of the Report, particularly
on certain international law issues. Thanks to Svitlana
Krasynska, doctoral student in Leadership Studies at
the University of San Diego, for sharing in our vision
and advising various nonprofit organizations and civil
society movements in Ukraine. This report was edited by Razom volunteers Halyna
Breslawec and Bohdan Pechenyak as well as attorneys
Peter Steciuk, Andrew Lencyk, and Mary Holland. We
are grateful to Dr. Aeddan Shaw form Jesuit University
of Philosophy and Education in Krakow, Poland for his
critique and edits. We appreciate attorney Alexander
Gudko’s checking and editing extensive footnotes.
The masterful layout was created by Oleksands Bezobchuk. Thank you Olya Yarychkivska, Bohdan Pechenyak, Dora Chomiak, and Natalya Shyrba, for logistics. The research, layout and overall production were
also coordinated by attorney and human rights activist
Ivanna Bilych and Olena Sharvan, PhD Candidate at
Jagiellonian University in Krakow.
We are grateful to Bohdan Pechenyak, Serhiy Fedunyak,
Violetta Strait and Olya Kroytor for their translation and
editing of the Ukrainian- and Russian-language versions. We are grateful to Arsen Zhumadilov for arranging for
Crimean-Tatar translation of the manual, and to the very
courageous translator from Crimea who wishes to remain anonymous, for fear of persecution.
We would like to thank to the following organizations,
whose generous financial contributions supported the
creation of this report: Shevchenko Scientific Society,
Ukrainian American Bar Association, Ukrainian Studies Fund, Self Reliance New York Federal Credit Union,
and Meest.
5
Executive Summary
The free practice of human rights has deteriorated rapidly on the Crimean peninsula of Ukraine after the illegal
annexation by the Russian Federation on March 18, 2014.
Serious and consistent violations of the civil, political,
social, economic and cultural rights of Crimean residents
have been well-documented by a variety of organizations
over the previous year.
The report draws on accounts from international media
outlets (particularly those from Ukraine and from the
Russian Federation), reports of other human rights organizations, dispatches from undercover journalists within
Crimea, and firsthand accounts of Crimean residents.
The illegitimate Crimean and Russian de facto authorities target those ethnic, religious, and national groups
that oppose the annexation. Indigenous Crimean Tatars
are frequently suspected of this sort of broadly defined
“anti-Russian activity”.
Part I: History and Background
This report builds on those findings to create a pragmatic
guide for people both within Crimea and outside of the
peninsula to understand the legal framework of the situation. The authors present the historical and legal context,
define the primary rights that are being violated, give recommendations on what steps people in Crimea can take
and outline actions for organizations outside Crimea. The
annex to the report is a Human Rights Protection Guide, a
‘Manual’ for people in Crimea and their advocates. The international community and human rights activists
have less access to the Crimean peninsula with each passing
day. As a result, increasing numbers of human rights violations occur unnoticed, and are unaccounted for and unreported. To help address this situation, lawyers who have
graduated from the New York University School of Law prepared this report for Razom, a Ukrainian-American human
rights organization. This report analyzes the human rights
situation in occupied Crimea, placing it within the context of:
• applicable international standards, conventions and
treaties;
• authorities and entities responsible for protecting and
providing human rights;
• specific abuses of human rights by the Crimean and
Russian de facto authorities;
• legal precedents that apply to the occupied territory,
and its legal regime. 6
The report includes four sections and an annex:
Part I brings together several related threads to create the
context for the current situation, covering:
• recent history, from Crimea’s transfer in 1954 to the
so-called March 16, 2014 referendum to unify with the
Russian Federation;
• the Russian Federation’s use of force to annex Crimea
in 2014;
• post-World War II international agreements and treaties on states’ sovereignty and territorial integrity.
Part II: Description of the Human
Rights
Part II examines 21 separate human rights that are provided for by both international and domestic laws. We
analyze each individually with respect to international,
Ukrainian and Russian law. The report focuses on:
• civil and political rights: right to life, freedom from torture or any other inhuman treatment, access to justice,
right to nationality, right to privacy and family rights,
liberty and security of a person, freedom of thought,
freedom of speech, freedom of assembly, right to truth,
right to participate in state governance, right to equality before the law and freedom from discrimination;
limitations of these human rights and freedoms are
prohibited unless prescribed by law;
• social, economic and cultural rights: right to own property, right to social security, right to an adequate standard
of living, right to speak one’s own language and maintain one’s own cultural tradition, right to education, and
right to health care.
Executive Summary
Part III: Remedies for People Whose
Rights Have Been Violated
Part III suggests remedies for individuals whose human
rights have been violated, suppressed, encroached or otherwise denied. The general and specific remedies include
the use of international, Ukrainian and Russian Federation legal instruments.
Part IV: Recommendations
for Organizations Worldwide
Part IV recommends roles and actions for Ukrainian,
Crimean and Russian de facto authorities, the international community, non-governmental organizations and
advocates on the ground, based on the analysis of the
first three parts. The recommendations are as practical
as possible.
Annex: Human Rights Protection Guide
(‘The Manual’)
Finally, an Annex to the report is a Human Rights Protection Guide (“the Manual”), developed specifically
to equip Crimeans and their advocates to overcome
the grave human rights crises. Many Crimean resi-
dents are economically deprived and legally underserved, with little awareness of their rights, let alone
of ways to demand them. The goal of the Manual is
to explain these fundamental rights so that Crimeans of all ethnic, national and religious groups can
realize justice. Each of these fundamental rights is
analyzed according to:
• scope of its application (who, specifically, is protected);
• meaning of the right;
• limitations of the right;
• state obligations with respect to the right;
• means of protecting the right (self-protection, administrative, judicial, social);
• remedies for violations of the right.
The authors hope the Report will assist individuals
in Crimea, Ukraine, as well as around the world in
academia, governments, international organizations,
non-governmental organizations, businesses, and media to understand the nature of the human rights violations in the occupied territory of Crimea, Ukraine so
that they are better equipped to do their work to defend
and protect the internationally recognized expression
of human rights. The Manual is designed to help residents of Crimea take steps to improve their current
situation directly.
7
I. Introduction
In 1954, the Soviet Union administratively transferred
the Crimean peninsula from the Russian Socialist Federative Soviet Republic (RSFSR) to the Ukrainian Soviet
Socialist Republic (UkrSSR). First, the Supreme Soviet
of the RSFSR approved the transfer; then, the Supreme
Soviet of the UkrSSR accepted it on June 17, 1954.1 Such
transfers were routine and done administratively in the
former Soviet Union. For example, on October 1, 1924,
the UkrSSR transferred the port city of Taganrog and the
Shakhty Okrug region to the RSFSR.2
There are various competing theories that attempt to explain the transfer. Mark Kramer, Director of the Cold War
Studies at Harvard and a Senior Fellow of Harvard’s Davis
Center for Russian and Eurasian Studies, argues that the
transfer of Crimea to the UkrSSR was politically useful for
Khrushchev as he sought to firm up the support he needed
in his ongoing power struggle with Soviet Prime Minister
Georgy Malenkov, who had initially emerged as the preeminent leader in the USSR after Joseph Stalin’s death in
1953. Khrushchev had steadily whittled away at Malenkov’s
position and had gained a major edge with his elevation
to the post of First Secretary of the Communist Party of
the Soviet Union in September 1953.3 The September 1953
the Party’s Central Committee plenary session marked an
entrenchment of Khrushchev’s power amongst the rank
and file of Soviet society, but the international community
continued to view Georgy Malenkov as the more influential of the two figures. In these conditions, Khrushchev
risked losing all that he had worked for decades to achieve,
and thus devoted all his attention and energies to his own
political survival. He had risen to the post of party First
Secretary at a time when the Central Committee was replete with individuals whom Khrushchev could not trust.
Moreover, while collecting evidence with which to attack
his pro-Stalinist opponents, Khrushchev came to hold a
damaging card in his hand – Stalin’s deportation of the
Crimean Tatars. Thus, a sharpening of tensions in Crimea
was not at all conducive to Khrushchev’s political plans.
As a result, he distanced himself from the whole Crimean
affair and allowed his rivals to deal with its solution.4
8
Volodymyr G. Butkevych, the Vice-President of the (former Soviet) International Law Association, offers a different theory. He argues that those who maintain that
“Crimea was given to Ukraine as a present by Khrushchev,” ignore the fact that Khrushchev played little or
no part in the transfer. It is noted that none of the legal
background documents associated with the transfer of
Crimea bear Nikita Khrushchev’s name or signature.5
Regardless of the motivation for the transfer of Crimea,
it is undisputed that the transfer was done legally and
in accordance with the existing law and following the
necessary procedures.
“
Mark Kramer correctly points out that:
the legal system in the Soviet Union was
mostly a fiction, but the transfer did occur
in accordance with the rules in effect at the
time. Moreover, regardless of how the transfer was carried out, the Russian Federation
expressly accepted Ukraine’s 1991 borders
both in the December 1991 Belovezhskaya
Pushcha accords (the agreements that precipitated and codified the dissolution of the
Soviet Union) and in the December 1994 Budapest Memorandum that finalized Ukraine’s
status as a non-nuclear weapons state.”6
Butkevych also concludes that international law recognizes the legality of a voluntary transfer of sovereignty
over a given territory between two governments based on
their mutual agreement. The only prerequisite stipulated
by international law demands that the state receiving the
territory must provide the inhabitants of that territory
the opportunity to choose either to maintain their former or their new citizenship. In the case of the Crimean
transfer, however, this prerequisite did not apply because
Article 21 of the 1936 USSR Constitution stated that a
single Union citizenship was established for all citizens
of the USSR.7
Introduction
The following documents reflect the legal background
of the transfer.
1.February 5, 1954 Decree of the RSFSR Council of
Ministers “Concerning the Transfer of the Crimean
Oblast’ from the RSFSR to the UkrSSR”8;
2.Minutes Nº41 from the February 5, 1954 meeting of
the Presidium of the RSFSR Supreme Soviet9;
3.February 13, 1954 Decree of the Presidium of the
Ukrainian Supreme Soviet, “Concerning the Submission of the RSFSR Supreme Soviet Presidium
Concerning the Issue of the Transfer of the Crimean
Oblast to the Ukrainian SSR”10;
4.February 15, 1954 Letter from D. S. Korotchenko and
V. Ye. Nizhnik to K. Ye. Voroshilov, with a Report
about the Decree of the Presidium of the Ukrainian
SSR Supreme Soviet11;
5.February 19, 1954 Meeting of the Presidium of the
Supreme Soviet of the Union of Soviet Socialist Republics.12
Originally, Crimea was an “autonomous republic” in the
RSFSR; however, its status changed to that of an oblast, or
province, in 1945. Consequently, when the RSFSR transferred Crimea to the Ukrainian SSR, it was a province
and remained so for 37 years until the USSR’s collapse
in 1991. When Ukraine became an independent nation,
it returned Crimea to the status of an “autonomous republic.”13
Like much of the Eastern Front, Crimea’s experience in
World War II was incredibly traumatic: it was occupied
by Nazi Germany, and the port city of Sevastopol was
almost destroyed in the fighting. Once the Red Army
recaptured Crimea in 1944, it forcibly deported the entire
population of Crimean Tatars (along with large numbers
of Greeks and Armenians) to Central Asia. Almost half
of the Tatars are believed to have died along the way. The
Tatars, who had lived on the peninsula for centuries, were
not allowed to return to Crimea until the dissolution of
the Soviet Union.14
The 1991 vote for Ukrainian independence was supported by a referendum in all regions of the Ukrainian SSR15,
including Crimea and the city of Sevastopol.16 A clear
majority (54%) of the Crimean voters supported independence from Russia, with a 60% turnout (in Sevastopol,
57% supported independence).17
Numerous international documents and treaties have
been signed since WWII to create and respect states’ sovereignty and territorial integrity. In signing these documents, Western and Communist countries pledged to
respect the inviolability of borders. The main documents
are:
1.United Nations Charter18;
2.General Assembly Resolution 2625 (XXV) of October
197019;
3.The final Act of the Conference on Security and Co-
operation in Europe, signed in Helsinki on 1 August,
197520;
4.Charter of Paris for a New Europe of 21 November
1990.21
After the dissolution of the Soviet Union, the international community, including the Russian Federation and all
other former Soviet republics, recognized Ukraine’s 1991
borders in the following key treaties and agreements:
1.Belavezha (Belovezhskaya) Pushcha Accords of December, 1991;
2.December 5, 1994 Memorandum on Security Assurances in Connection with Ukraine’s Accession to the
Treaty on the Non-Proliferation of Nuclear Weapons
(Budapest Memorandum)22;
3.May 28, 1997 Partition Treaty on the Status and
Conditions of the Black Sea Fleet23;
4.May 31, 1997 Treaty on Friendship, Cooperation and Partnership between Ukraine and the Russian Federation24;
5.December 21, 1991 Alma-Ata Declaration.25
The Helsinki Final Act of the Conference on Security
and Cooperation in Europe established key ground rules
and principles including sovereignty, territorial integrity,
human rights and economic cooperation. Participating
states agreed to:
• respect each other’s sovereign equality and individuality
as well as all the rights inherent in and encompassed by
its sovereignty, including in particular the right of every
State to juridical equality, to territorial integrity and to
freedom and political independence;
• refrain in their mutual relations, as well as in their
international relations in general, from the threat or
use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the purposes of the United Nations and
with the present Declaration. No consideration may be
invoked to serve as a warrant for resorting to the threat
or use of force in contravention of this principle;
• refrain from any acts constituting a threat of force or
direct or indirect use of force against another participating State;
• refrain from any manifestation of force for the purpose
of inducing another participating State to renounce the
full exercise of its sovereign rights. Likewise they will
also refrain in their mutual relations from any act of
reprisal by force;
• refrain from any employment of such threat or use of
force as a means of settling disputes, or questions likely
to give rise to disputes, between them. 26
In 2010, Ukraine and the Russian federation extended the Agreement on the Status and Conditions of the
Russian Federation Black Sea Fleet’s Stay on Ukrainian
Territory.27 Under the treaty, Ukraine leased to Russia
naval bases in Crimea. However, Eric Posner, Kirkland
and Ellis distinguished professor at the University of
9
Chicago Law School, correctly concludes that the treaty
unsurprisingly does not give Russia the authority to conquer Crimea. Nor does it give Russia the discretionary
authority to move troops around Crimea. It gives Russia
the authority to locate troops on its bases in Crimea, and
to move them between those bases and Russian territory.
But the troops must follow Ukrainian law and respect
Ukrainian sovereignty.28
On March 14, the Constitutional Court of Ukraine ruled
that the Crimean referendum was unconstitutional and
ordered the Crimean authorities to cease all preparations for it immediately. Further, Ukraine’s Minister of
Justice Pavlo Petrenko, Ombudsman Valeriya Lutkovska
and Chair of the Council of Judges Vasyl Onopenko all
publicly condemned the Crimean referendum as unconstitutional and a violation of human rights.32 On March
15, the Council of Europe’s Venice Commission for Democracy through Law (Venice Commission) opined that
the referendum was illegitimate.33
The March 16, 2014 referendum ballot provided voters
with two questions, each of which proposed a change to
Source: iar-gwu-org
Source: d.ibtimes.co.uk/en/full
On February 24, 2014, following Maidan protests which
led to the overthrow of President Yanukovych, armed
soldiers, without national or other identifying insignia
appeared in Crimea, took over Crimea’s airports and
ports, oversaw the so-called referendum and assisted a
self-appointed individual, Mr. Aksenov,29 in calling for
and conducting an “All-Crimean Referendum” with only
ten days’ notice.
and of Article 72 that outlines the mandatory procedure
for such a nationwide referendum.
On April 17, 2014, after weeks of denying the knowledge or origin of the armed soldiers, 30 Vladimir Putin admitted that the armed men in military uniform
without insignia, dubbed “the little green men” or “the
polite people,” who were present in Crimea before and
during the referendum, were Russian troops. He stated,
“Crimean self-defense forces were of course backed by
Russian servicemen. They acted very appropriately, but
as I’ve already said decisively and professionally.” Mr.
Putin insisted that he never concealed the fact from his
foreign counterparts, and explained to them that it was
the only way to ensure the referendum on the region’s
status would be carried out peacefully.31
On March 6, 2014, the Supreme Council of the Autonomous Republic of Crimea unlawfully adopted a resolution, “On the All-Crimean Referendum,” calling for the
public to vote on whether Crimea should join Russia. The
resolution breached the Ukrainian Constitution, international principles and norms and violated Ukrainian
citizens’ rights and freedoms. Specifically breached were
provisions of Article 2(2) of the Ukrainian Constitution
that Ukraine is a unitary state and that its territory is
indivisible and inviolable; of Article 73 that any change to
the country’s territory requires a referendum of the whole
country, similar to the situation of Quebec in Canada;
10
Crimea’s status as an Autonomous Republic, which they
had to vote for affirmatively. No option to vote for the
status quo was provided.34
The Crimean Tatars, the indigenous people of Crimea,
were not represented in the vote. Many boycotted
the March 16, 2014 referendum. Participation would
have been difficult, however, since authorities failed
to provide voting booths in Tatar regions. By holding
the referendum in this manner, Crimean authorities
violated the rights of Crimean Tatars and Article 69
of the Constitution. Russian troops oversaw the referendum with no international election monitors or
observers present.
Official results stated that 96.7% of participating voters in
Crimea and Sevastopol were in favor of joining Russia.35 A
report by the Russian President’s Human Rights Council,
however, suggested the official results were inflated, and
only 15% to 30% of Crimeans actually voted for the Russian option.36
On 17 March, 2014, following the official announcement of the referendum results, the Supreme Council of
Crimea declared the formal independence of the Republic of Crimea and sought UN recognition.37
REUTERS/Gleb Garanich
Introduction
Crimean Tatars hold a national flag and shout slogans during an anti-war rally at Independence Square in Kiev March 8, 2014.
On March 18, 2014, just two days after the referendum,
the representatives of the Republic of Crimea and the
Russian Federation signed the Treaty on Accession of
the Republic of Crimea to the Russian Federation.38 On
March 21, 2014, the annexation of Crimea was ratified
by the Federal Assembly.39 Recently, Russian lawmakers
proposed to rename Crimea into Taurida, the name given
to the peninsula in tsarist Russia.40
the exercise of this right of self-defense until the Security
Council takes measures necessary to maintain international peace and security.
The Parliament of Ukraine condemned Russia’s actions
in annexing Crimea as gross violations of international
law and stated that Crimea is Ukraine, and the people of
Ukraine will not cease fighting for Crimea.41 On 15 April
2014, the Parliament declared the Autonomous Republic
of Crimea and Sevastopol to be under “provisional occupation” by the Russian military.42
Resolution RC/Res/6 of the International Criminal Court
that amended the Rome Statute defined the crime of
aggression as “planning, preparation, initiation or execution, by a person in a position effectively to exercise
control over or to direct the political or military action
of a State, of an act of aggression which, by its character,
gravity and scale, constitutes a manifest violation of the
Charter of the United Nations”.
Some have argued that because Ukraine feared escalating the confrontation into a full‐scale war, Ukraine did
not claim that an “armed attack” had occurred, which
would have triggered Article 51 of the UN Charter and
a right to self-defense.43 However because Article 51 of
the UN Charter defines the right to self-defense as an
inherent right, it does not require its member states to
claim an act of aggression. It merely requests its Member
to immediately report the measures taken by Members in
The issue is, however, whether the Security Council can
in fact take such measures when the act of aggression
is committed by a permanent UN member with almost
unlimited veto power over UN actions.
The Charter of the United Nations defines an “act of aggression” as the use of armed force by a State against the sovereignty, territorial integrity or political independence of
another State, or in any other manner inconsistent with the
Charter of the United Nations. Any of the following acts,
regardless of a declaration of war, shall, in accordance with
United Nations General Assembly resolution 3314 (XXIX)
of 14 December 1974, qualify as an act of aggression:
11
(a) The invasion or attack by the armed forces of a State
of the territory of another State, or any military occupation, however temporary, resulting from such
invasion or attack, or any annexation by the use of
force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State against
the territory of another State or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the
armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea
or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are within
the territory of another State with the agreement of
the receiving State, in contravention of the conditions provided for in the agreement or any extension
of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which
it has placed at the disposal of another State, to be
used by that other State for perpetrating an act of
aggression against a third State;
(g) The sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which
carry out acts of armed force against another State
of such gravity as to amount to the acts listed above,
or its substantial involvement therein.44
As it has been already indicated, the Russian Federation is a signatory to numerous international treaties
and agreements that, since WWII, have created a special framework of international law to prevent wars and
armed conflicts. International law and laws of the individual countries recognize territorial integrity as one
of the bedrock principles of the modern international
system and state security. States have an obligation to
refrain from the threat or use of force against the territorial integrity or political independence of any State,
its border or in any other manner inconsistent with the
purposes of the United Nations.
International law defines a treaty as an agreement between states. The issue is whether a treaty signed by Russian Federation and Crimea is, in fact, a legally binding
treaty. Gregory H. Fox, Professor of Law and Director of
the Program for International Legal Studies at Wayne
State University Law School, argues that it seems unlikely
that Crimea would be considered a state as of March 16,
regardless of the theory one employs to justify such. At
the time of the signing its treaty with Russia, Crimea had
apparently been recognized only by Russia, precluding
statehood under the constitutive theory. And, having asserted independence from Ukraine for no more than three
weeks prior to the agreement with Russia, Crimea had not
developed the capacity to function as a state, precluding
statehood under the declaratory theory.45 Consequently,
the agreement is in direct violation and contrary to the
peremptory norm of state territorial integrity. Gregory H.
12
Fox insists that this renders it void ab initio under Article
53 of the Vienna Convention on the Law of Treaties.46 At its 80th plenary meeting on March 27, 2014, General
Assembly adopted a resolution calling upon states not to
recognize changes in the status of Crimea Region, with
100 votes in favor, 11 against and 58 abstentions.47 The
resolution affirmed a commitment to the sovereignty,
political independence, unity and territorial integrity
of Ukraine. The resolution underscores that the referendum held in the Autonomous Republic of Crimea
and the city of Sevastopol on 16 March 2014, having no
validity, cannot form the basis for any alteration of the
status of the Autonomous Republic of Crimea or of the
city of Sevastopol. It calls upon all States, international
organizations and specialized agencies not to recognize
any alteration of the status of the Autonomous Republic
of Crimea and the city of Sevastopol on the basis of the
above-mentioned referendum and to refrain from any
action or dealing that might be interpreted as recognizing any such altered status. This collective decision not
only recognizes the act as illegal but also clearly denies
Crimea any sort of capacity to enter into treaties (such
as the March 18, 2014 treaty with Russia).
The annexation of Crimea also appears to be at odds with
the Russian Federation’s law. Law No. 6-FKZ implements
Article 65 (2) of the Constitution of the Russian Federation, which stipulates that “accession to the Russian
Federation and formation of a new subject of the Russian
Federation within it shall be carried out as envisaged by
the federal constitutional law.” Under Article 4 of Law
No. 6-FKZ, a foreign state or its part may be admitted
to the Russian Federation as its new subject. The admission shall be based on a mutual accord (по взаимному
согласию) between the Russian Federation and the relevant state and shall take place pursuant to an international treaty between the two countries (Article 4 (2)). This
law appears to require Ukraine to initiate negotiations
involving an annexation of Crimea by Russia.
On February 28, 2014, a group of deputies of the State
Duma of the Russian Federation introduced Draft Federal Constitutional Law No. 462741-6 “On Amending
the Federal Constitutional Law on the Procedure of Admission to the Russian Federation and Creation of a New
Subject within the Russian Federation.”
The Venice Commission arrived at the conclusion that
the Draft Law is clearly not in compliance with several
fundamental international law principles, especially the
principle of the territorial integrity of states, the principle
of sovereign equality, the principle of non-intervention
in the internal affairs of a state, and, potentially, the prohibition of the threat of force. These principles are part
of customary international law and are enshrined in the
U.N. Charter and various international instruments.48
Human rights guarantees on occupied territory
II. Human rights guarantees
on occupied territory
In 2014, the world faced a new international conflict,
which required the application of international humanitarian law, especially the law on occupation. This conflict
is now known as the “Crimea Precedent”.
Since the end of February 2014, the Russian Federation
de facto has occupied the Crimea peninsula, an integral
part of Ukrainian territory. There was no official transfer of authority. Neither Ukraine nor the international
community recognizes Crimea as a part of the Russian
Federation. The UN General Assembly “Calls upon all
States, international organizations and specialized agencies not to recognize any alteration of the status of the
Autonomous Republic of Crimea and the city of Sevastopol … to refrain from any action or dealing that might
be interpreted as recognizing any such altered status.”
Under international law, the Russian Federation is an
occupying power. According to Article 42 of the 1907
Hague Regulations and Article 2 of the 1949 Geneva
Convention IV, a territory is considered “occupied” when
it comes under the control or authority of foreign armed
forces, whether partially or entirely, without the consent
of the domestic government. Neither a declaration of war,
nor the reasons or motives that lead to the occupation,
Source: prospectmagazine.co.uk
1. Overview of international and
domestic law
13
or are the basis for continued occupation, are relevant.
Military occupation includes so-called “peaceful occupation”, when a military invasion meets with no resistance.
It is immaterial whether occupying forces perform direct or indirect control over occupied territory. In case
of Crimea, there was no military resistance and local
authorities served as agents of the Russian Federation.49
Hence, the military occupation of Crimea by the Russian Federation should be classified as a peaceful indirect
occupation, which became direct when “the Republic
of Crimea” was claimed to be part of the Russian Federation.
In spite of efforts undertaken by the Russian Federation
to legalize its invasion and subsequent annexation of
Crimea, Russia is widely recognized as an occupying
power in Crimea. Thus the Russian Federation has certain obligations with regard to the protection of human
rights and fundamental freedoms of all people living in
Crimea.
International Humanitarian Law
Both Russia and Ukraine are parties to the 1907 Hague
Regulations, the 1949 Geneva Convention IV, and certain provisions of the 1977 Additional Protocol I to the
1949 Geneva Conventions. This body of international law
provides the primary basis for the modern law on occupation. The legal regime of an occupied territory is also
regulated by international customary law – ius cogens.50
An occupying power does not acquire sovereignty over
the occupied territory. Occupation is only a temporary
situation and the occupant must respect the laws in force
in the occupied territory, unless they constitute a threat
to its security or an obstacle to the application of the
international law of occupation.51
According to the international law on occupation, the
Russian Federation as an occupying power is obliged to
ensure that everyone is treated humanely and without
discrimination based on ethnicity, religion, or any other
basis.52 This includes respecting family honor and rights,
people’s lives, and private property, as well as religious
and customary convictions and practice and adhering
to the prohibitions on acts such as arbitrary detention,
enforced disappearances, and inhuman and degrading
treatment or punishment and torture.53 There should be
no collective punishments, taking of hostages, reprisals
against protected persons or their property, confiscation
of private property, destruction or seizure of public or
private property. The only exception is military necessity
during the conduct of hostilities. This exception does
not apply in case of Crimea, because Ukraine effectively
refrained from any hostilities or armed resistance.
An occupying power is responsible to secure an appropriate standard of living for the population of the territo14
ry under its control, i.e. ensure proper operation of health
care, social care and educational institutions.54
The occupying power must take measures to restore and
ensure, as far as possible, public order and safety.55 However, it may not use false pretenses for the limitation or
derogation of human rights in a territory.
The population in the occupied territory cannot be forced
to accept an occupier’s citizenship or serve in the occupier’s armed forces. Any forcible transfers of population
into an occupied territory are prohibited, as are voluntary transfers of the population of the occupying power
into the occupied territory.56
The occupying power has an obligation not only with respect to individuals living on the occupied territory, but
also to the whole nation whose territory it has occupied.
Thus, under international law the Russian Federation
must protect objects of Ukrainian and Crimean Tatar
heritage, including cultural property, art, literature and
natural resources. Since the occupant is only a temporary
administrator, it does not acquire ownership of immovable public property in the occupied territory. Subject to
restrictions regarding their exploitation and use, it can
nevertheless make use of public property, including natural resources, but it must safeguard their capital value,
in accordance with the law of usufruct.57
Besides its own obligations to act or refrain from action,
the occupying power must allow and facilitate the International Red Cross/Red Crescent Movement or any other
recognized humanitarian organizations’ personnel to
carry out their humanitarian activities.58 In particular,
it must provide necessary facilities and give access to all
protected persons, wherever they are, whether or not they
are deprived of their liberty.59
Currently, the Russian Federation does not recognize
its occupant status and thus does not accept its respective obligations under international humanitarian law.
Following the annexation of Crimea to its territory, the
Russian Federation, personalized by President Vladimir
Putin, considers itself as a sovereign over the territory
and population of Crimean peninsula. Specific violations
of international law will be discussed in this paper.
At this point, it is worth mentioning that under international customary law, states are responsible for violations
of international humanitarian law attributable to them,
including:
(a) violations committed by their organs, including
their armed forces;
(b) violations committed by persons or entities they
have empowered to exercise elements of governmental authority;
(c) violations committed by persons or groups acting in
fact on their instructions, or under their direction
or control; and
(d) violations committed by private persons or groups
which they acknowledge and adopt as their own.60
States are responsible for both acts and omissions for the
acts of private firms or individuals that are used by the
armed forces to accomplish tasks that are typically those
of the armed forces, e.g. mercenaries or private military
companies. Many of the reported human rights violations in Crimea are attributed to the so-called defense
units,61 whose status is unclear. It is hard to say whether
Crimean self-defense units are Russian mercenaries or
private military firms hired by the Russian Government,
but the Russian Federation is nevertheless responsible for
their actions, particularly after Crimean de facto authorities decided to legalize those units and grant them amnesty for committed violations.62 Even if the self-defense
units were not created and sent to Crimea by the Russian
Government, that government would be held responsible
for their acts based on ex post facto adoption.63
Serious violations of the treaty-based or customary international law may include death, injury, destruction or
unlawful taking of property, abuse of dead bodies, humiliating treatment of a person, forced military service,
violation of the right to fair trial, etc.,64 and constitute
war crimes. War crimes are subject to the national and
international jurisdiction. States may establish universal
jurisdiction over war crimes, i.e. prosecute them no matter where and by whom they were committed.65 There is
also an international mechanism – the ICC and ad hoc
tribunals or special courts – to prosecute war crimes.
The ICC is the first treaty-based, permanent international criminal court, which has jurisdiction over the most
serious international crimes of international concern.
However, its jurisdiction is limited to crimes committed
by a nation or on the territory of a state that has accepted its jurisdiction. In the most serious cases, the United
Nations Security Council may refer a situation to the ICC
Prosecutor, regardless of the nationality of the accused
or the location of the crime.66
The limited jurisdiction of the ICC should not lead to
impunity of the international criminals. In order to avoid
this outcome, there is a system of mixed tribunals and
special national courts. In recent years, two mixed tribunals, comprising elements of both international and
domestic jurisdiction, and special chambers within national courts, were established to try those responsible for
crimes committed in specific contexts.67 The most recent
example is the Special Tribunal for Lebanon, inaugurated
in March 2009 pursuant to Security Council resolution
1664, which has jurisdiction over the crimes committed
under Lebanese criminal law in the attack on the former
Prime Minister carried out on 14 February 2005.68
Ukraine has not ratified the Rome Statute of the ICC,
and acceptance of its jurisdiction requires changes to the
Ukrainian Constitution, a lengthy process.69 Therefore,
the Ukrainian Government, in cooperation with the international community, should consider establishing a
special court with jurisdiction over crimes committed
during the 2013-14 Maidan protests, the Crimean occupation and the conflict in Eastern Ukraine, and with primacy over the national courts of Ukraine. Formation of
the special tribunal under international mandate would
help to ensure that those who commit serious crimes
do not go unpunished. Furthermore, establishment of
the special court is required to ensure impartiality and
objectivity in high profile cases.
International Human Rights Law
Of course, international human rights law applies at all
times, regardless of peace or war.70
In the case of military occupation, international humanitarian law and international human rights law apply concurrently. Sometimes human rights obligations
under international human rights law are mirrored in
international humanitarian law. However, humanitarian law does not address all human rights issues, and
application of international human rights law is required,
especially in the case of social, economic and cultural
rights. In addition, international humanitarian law does
not provide the same human rights protection mechanisms as international human rights law does, such as,
for example, the European Court of Human Rights or
the UN Human Rights Committee, which have proven
to be an effective remedy and vindication in some cases
of human right violations.
Major international treaties and a number of bilateral or
multilateral international agreements guarantee fundamental human rights, including on occupied territory.
Among them:
(a) The Universal Declaration of Human Rights
(UDHR);
(b) International Covenant on Civil and Political Rights
(ICCPR);
(c) International Covenant on Economic, Social and
Cultural Rights (ICESCR);
(d) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
(e) International Convention for the Protection of All
Persons from Enforced Disappearance;
(f) Convention on the Rights of Persons with Disabilities;
(g) Convention for the Protection of Human Rights and
Fundamental Freedoms;
(h) European Social Charter (revised);
(i) Convention on the Rights of the Child (CROC).
Human rights as defined in the UN treaties are guaranteed by the obligations of States to act or refrain from
action, and are monitored by the UN Human Rights
15
Committee (UNHRC) and the jurisprudence of the International Court of Justice (ICJ).
The UDHR was adopted by the General Assembly of
the United Nations in 1948. It is not a treaty and was
therefore not signed or ratified by Ukraine or the Russian
Federation. Despite the ongoing debate on the UDHR’s
binding character, it is generally seen as customary international law and, therefore, as having binding force all
countries. As a result, the rights enshrined in the UDHR
also have to be recognized by the Crimean authorities
(regardless whether they operate under Ukrainian or
Russian law). In contrast to the UDHR, the ICCPR and
ICESCR are binding treaties. Moreover, the ICCPR established the United Nations Human Rights Committee
(UNHRC) as a monitoring body that requires state parties to file regularly human rights reports. Both Ukraine
and the Russian Federation are parties to the ICCPR and
to its First Protocol establishing an individual complaints
mechanism.71
In the case of human rights and freedoms described in
the Convention for the Protection of Human Rights and
Fundamental Freedoms, there is a specially designed law
enforcement mechanism – the European Court of Human Rights (ECtHR), which renders decisions on specific
violations of the Convention based on individual or collective applications, and inter-State applications.72 At this
point, ECtHR is dealing with one inter-State application
(Ukraine v. Russia, application no. 20958/14) and there
are more than 20 individual applications against Russia
and Ukraine concerning events in Crimea.73 Those applications contain complaints about violations of Articles 2
(right to life), 3 (prohibition of torture and inhuman or
degrading treatment), 5 (right to liberty and security), 6
(right to a fair trial), 8 (right to respect for private life),
9 (freedom of religion), 10 (freedom of expression), 11
(freedom of assembly and association), 13 (right to an
effective remedy) and 14 (prohibition of discrimination)
of the Convention and Article 1 of Protocol No. 1 (protection of property) and Article 2 of Protocol No. 4 (freedom
of movement) to the Convention.
With respect to the European Social Charter that sets
out so-called social rights and freedoms, the Council of
Europe has established a supervisory mechanism which
consists of two elements (Articles C and D of the European Social Charter): the European Committee of Social
Rights (a quasi-international сourt) and the collective
complaints procedure (under which selected and registered international NGOs are entitled to lodge such
a complaint against Member States to the Charter).74
Unfortunately, individual applications are not covered.
As noted above, human rights law applies universally and
extraterritorially. The principles of extraterritorial application of human rights law were defined by the major
human rights protection institutions: the United Nations
16
Human Rights Committee,75 the United Nations Committee on Economic, Social and Cultural Rights,76 the
European Commission and Court of Human Rights,77
the United Nations Committee Against Torture,78 the
United Nations Committee on the Rights of the Child,79
and, of course, the International Court of Justice (ICJ)80.
Under this body of law, there are at least two tests for
extraterritorial applicability of human rights law:
1.“state agent authority and control” – is satisfied “…
whenever the State through its agents exercises control
and authority over an individual, and thus jurisdiction”81;
2.“effective control over an area” – which refers to situations “when, as a consequence of lawful or unlawful
military action, a Contracting State exercises effective
control of an area outside that national territory.”82
The issue of the extraterritorial application of human
rights law in Crimea may not arise with respect to Russian or Ukrainian human rights obligations because the
Russian Federation has annexed Crimea and declared it
part of its territory. The Russian Federation may object
to assuming responsibility for human rights violations
before formal annexation of the peninsula. This objection
is groundless, however, because the Russian Federation
started its occupation of Crimea in late February 2014,83
and thus acquired “effective control over an area”. Military occupation is a classic example of “effective control over an area”, as “the essence of occupation revolves
around the occupying power’s control of the area, as is
clear from Article 42 of the [1907] Hague Regulations.”84
International human rights protection treaties and agreements impose on States negative and positive obligations.
Under a negative obligation, a state is obliged to refrain
from taking actions that would directly contravene the
right. A positive obligation imposes on the state the duty to
act, i.e. to take preventive operational measures to protect
the rights of individual or to vindicate rights in the case of
violation.85 Usually, but not always, violations of negative
obligations are relatively easy to establish. Unlike negative
obligations, adherence to positive obligations is not so clear
and straightforward. Sometimes, the state may argue an
inability to perform its positive obligations, e.g. to maintain
order or to investigate human rights violations. This argument cannot be effective with respect to the positive obligations of an occupying power, which by its very definition
has acquired control over the area. In DRC v. Uganda, the
ICJ has ruled that being an occupying power in Ituri at the
relevant time, Uganda had responsibility both for any acts
of its military that violated its international obligations and
for any lack of vigilance in preventing violations of human
rights and international humanitarian law by other actors
present in the occupied territory, including rebel groups
acting on their own account.86
In the event of military occupation, both the occupant
and the occupied has obligation with respect to human
rights protection. Thus, regarding human rights protection in Crimea, Ukraine, as well as the Russian Federation, is obliged to take all necessary and sufficient actions
to protect human rights on the occupied territory. Under
ECHR case law, a state that has lost effective control over
its territory and has no control over the acts of de facto
authorities is nevertheless obliged under Article 1 of the
Convention to use all the legal and diplomatic means
available to it to continue to guarantee the enjoyment
of the rights and freedoms defined in the Convention to
those living there, since the region is recognized under
public international law as part of its territory.87 Satisfaction of those obligations is considered individually in
every case, based on law and facts.
Notwithstanding the general applicability of human
rights law at all times, it is worth noting that the “mode
of application” may differ in accordance with the ruling
circumstances. Sometimes the general interest of public
order and safety can outweigh individual interests and
lead to less vigorous protection of individual rights and
freedoms. In some cases, the language of the treaty itself
allows limitation of the right under certain conditions.
Usually, the description of those rights is followed by
statement that permits ”limitations as are prescribed
by law and are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of others.”88
Another way to legally restrict human rights is derogation. A system of derogations allows states to adjust their
obligations temporally under the treaty in exceptional
circumstances, i.e. in times of public emergency threatening the life of the nation.89 Examples of emergency include, but are not limited to, armed conflicts, civil and
violent unrest, environmental and natural disasters.90
In order to effectively derogate its human rights obligation the state has to prove the state of emergency (in
some instances, make a formal declaration of the state
of emergency) and notify about derogation in advance.
Declaration of derogation does not apply retroactively.
The Ukrainian Government declared its will to submit
the declaration of derogation of Ukrainians’ duties under
the European Convention on Human Rights but has not
yet done so.91 Hopefully, it will not resort to such measures as derogation from its human rights obligations
and that the government will implement efficient mechanisms of human rights protection over all Ukrainian
territory. However, if the state plans to violate its negative
obligation, it must officially derogate them in order to
avoid an unnecessary burden on taxpayers.
To conclude, international human rights law applies fully
over all of the territory of Ukraine. In the case of Crimea,
both the Russian Federation and Ukraine are responsible
for human rights protection on its territory. Sometimes
human rights and fundamental freedoms may be restricted, but only on legally recognized grounds. How-
ever, according to international principles of law, nothing
could ever justify actions (act or omissions), which result
in the blatant violation of fundamental human rights, especially the right to life, to justice, to liberty, or freedom
from torture and other forms of inhumane treatment.
Ukrainian Law on the Legal Regime of
an Occupied Territory
Following the occupation and annexation of the Autonomous Republic of Crimea by the Russian Federation, the
Ukrainian Parliament (the Supreme Council of Ukraine)
passed a new law on the legal regime in the temporarily
occupied territory. Law of Ukraine No. 1706-VII “On
Securing the Rights and Freedoms of Citizens and the
Legal Regime in the Temporarily Occupied Territory of
Ukraine” was adopted on April 15, 2014, and entered into
force on November 22, 2014.92
By this law, the Ukrainian Parliament confirms that the
territory of the Autonomous Republic of Crimea and the
City of Sevastopol is an integral part of the territory of
Ukraine. It defines the scope of occupied territory (land
territory, inland waters, territorial sea, exclusive economic zone, continental shelf, underwater and air space) and
sets out the special legal regime in these territories.
While Ukraine declares that the main aim of this law
is to guarantee human rights and freedoms, it imposes
responsibility for the compensation of pecuniary and
moral damages caused to the state of Ukraine, individuals, legal entities, civic organizations, citizens of Ukraine,
foreigners and stateless persons because of the temporary
occupation of the Occupied Territory by Russia in the
form of the Russian Federation.93 In accordance with this
legislation, the governing law of the Occupied Territory is Ukrainian law and the Occupied Territory is an
inalienable part of the Ukraine. A quasi-judicial body,
namely the Ombudsman, is empowered under the Law
of Occupied Territory to carry out parliamentary control over the adherence to the constitutional rights and
human rights in Crimea.94
The Law on the Occupied Territory is not a panacea for
all of the human rights violations that are taking place
in Crimea. It does not specify legal remedies available
to individuals and legal entities. The reports of the
United Nations Human Rights Monitoring Mission
in Ukraine (HRMMU) has brought to light the innumerable gross human rights violations that have been
committed (by the Russian Federation) or facilitated
(by the Ukrainian Government) in Crimea. According
to the report dated May 15, 2014, as of April 7, 2014, the
regional office of Ombudsman (which was the parliamentary body in monitoring the human rights situation) was forced to stop working and had to close due
to its eviction from office and the overall obstruction
faced by its staff in their work. 95
17
The Ukrainian law on the Occupied Territory does
not impose restrictions on human right and freedoms.
However, in order to secure their application, it sets new
rules. Since the Ukrainian state bodies are banned from
Crimea, all legal actions that require state authorization
must be performed on the mainland, e.g. notarization,
licensing, patenting, issuance of permits, certification
and standardization etc.96
It should be noted that operating a business under
Ukrainian law without the required permit or license,
or operating a prohibited business, is a criminal offence.
Therefore, registering and operating a business in the
Crimea in accordance with the laws of the Russian Federation may result in criminal liability for management
under Ukrainian law, including liability for tax evasion.97
The special status of an occupied territory warrants certain other limitations of the rights and freedoms, the
following activities are not allowed: buying and selling
weapons and military equipment; organization of auto,
sea, river and ferry transportation using state resources,
including financial, natural and credit, as well as facilitating such activity, unless the latter is aimed at Ukraine’s
state interests, peaceful resolution of the occupation, deoccupation and humanitarian goals.
The Law recognizes that Ukrainian courts cannot render
justice on the occupied territory, therefore all cases (i.e.
civil, commercial, administrative and criminal) falling
under the jurisdiction of the Crimean courts shall be
reviewed by the competent courts in Kyiv (the capital of
Ukraine). The Office of Prosecutor General of Ukraine
will determine the jurisdiction of investigation authorities with respect to crimes committed in Crimea.98
With respect to social rights, the law reaffirms that people residing in Crimea are entitled to social security benefits guaranteed under Ukrainian law. However, those
who receive a pension or other social benefits from the
Russian Federation will lose the right to Ukrainian pension. In order to receive their pension and social benefit
payments, residents of Crimea must travel to the mainland. This is understandable, since all Ukrainian state
offices are banned from Crimea.99
The Law provides that neither elections of the President
or members of the Parliament, nor the all-Ukrainian referendum, can take place in the occupied territory. However, Ukrainian citizens residing in the Crimea are not
deprived of their voting rights and can cast their vote at
voting places organized in other regions of Ukraine.100
This Law also sets out new rules for crossing the administrative border between mainland Ukraine and the
Crimean Peninsula. Citizens of Ukraine can freely enter
and exit the temporarily occupied territory upon presenting documents confirming their Ukrainian citizenship.
18
Entry and exit of foreigners and stateless persons from
the temporarily occupied territory is allowed only with
the special permission via relevant entry-exit points.101
Traveling into Crimea aiming to disrupt Ukraine’s state
interests is punishable by imprisonment of up to three
years and confiscation of the vehicle.
Human Rights Watch reported that Ukrainian border
guards conduct searches for the Russian passports and
do not allow holders of both Ukrainian and Russian passports to enter mainland Ukraine. Human Rights Watch
came across three such cases.102 Acts like this are clearly
illegal and violate freedom of movement. As long as a
person remains a Ukrainian citizen, he or she may not
be denied the right to enter or move through Ukrainian
territory. A citizen of Ukraine who has submitted an application to renounce his/her citizenship of Ukraine, or
in respect to whom the case on the loss of citizenship
is pending, enjoys all rights and bears all obligations of
the citizen of Ukraine until the termination of his/her
citizenship of Ukraine.103
Property rights in the occupied territory are regulated
by the laws of Ukraine. Any property transition that violates the laws of Ukraine is unlawful and considered void.
Inheritance rights should be enforced. Any transactions
involving the property of refugees or internally displaced
people without their knowledge are illegal and void.
Economic activity in Crimea should be provided under the Law of Ukraine “On establishment of the Free
Economic Zone “Crimea” and peculiarities of providing
economic activity on the temporary occupied territory of
Ukraine.”104 The main provisions of this Law are:
• the territory of the Autonomous Republic of Crimea
and the city of Sevastopol becomes a Free Economic
Zone (FEZ) for 10 years;
• companies may not hold meetings of their corporate
bodies (including general meetings) in Crimea;
• individuals residing in the territory of the FEZ are exempted from state taxes and unified social contribution;
• residents of the FEZ are considered to be nonresidents
of Ukraine;
• transactions between residents of the FEZ and residents
of mainland Ukraine are subject to the transfer pricing
rules under the Tax Code of Ukraine;
• legal entities – residents of Ukraine, which changed
their location from the temporarily occupied territory
to the mainland territory of Ukraine, are exempt from
their tax debts on any taxes having arisen from the moment of temporary occupation;
• any income of residents of mainland Ukraine with
sources on the territory of the FEZ is subject to tax as a
foreign income without foreign tax credit;
• it is prohibited to carry Russian rubles through the administrative border of the FEZ except for individuals
who may carry Russian rubles in cash in the amount
not exceeding the equivalent of UAH 10,000 if declared
on official customs checkpoints;
• supply of goods into the territory of the FEZ from the
mainland territory of Ukraine is considered as export,
and supply of goods from the FEZ to the mainland territory of Ukraine is considered as import and shall be
conducted in compliance with Ukrainian rules on sanitary-epidemiological, veterinary, sanitary, phytosanitary, environmental and radiological controls;
• licenses, certificates and permits issued to business entities on the territory of the FEZ according to Ukrainian
law before September 27, 2014 are valid on the territory
of Crimea and can be used for business purposes on the
territory of mainland Ukraine until the end of the validity period of such documents, but cannot be prolonged;
• licenses for the export of goods that were issued to entities engaged in foreign economic activities and registered in the FEZ, and licenses and permits for conduct
of customs brokerage, opening and operation of duty
free shops, bonded warehouses, customs-free zones or
a temporary storage facilities and customs cargo complexes on the territory of Crimea are revoked.
By passing this Law and the Law on Occupied Territory,
Ukraine aims to protect and secure the full realization
of national, cultural, social and political rights of its citizens. While international organizations report human
rights violations directly attributed to Ukrainian authorities, violations committed by the Russian Federation
are much more widespread and severe. A more detailed
analysis of human rights violations in Crimea will follow
in subsequent parts of this report.
Although Ukraine may and should address violations
committed by its agents, it has no jurisdictional power
to bind other sovereign states, such as the Russian Federation, with its decisions. Notwithstanding that, the
Russian Federation must respect its obligations as the
occupying power and take responsibility for the protection of human rights in the area under its effective
control. When it denies responsibility, legal entities and
individuals may de facto rely only on the legal remedies
offered under international law.
ry, may be used by national courts and individuals. The
Russian Supreme Court also publishes all international
and regional instruments ratified by the Russian Federation, as well as the judgments of the ECtHR. According to
the Russian Supreme Court, national authorities should
apply the judgments of the ECtHR immediately. The Russian Judiciary regularly sends judges to Strasbourg for
training on the European Convention on Human Rights
and the ECtHR. The Russian Supreme Court has issued
rulings about the use of human rights instruments by
Russian Courts. In 2007, it recommended that judges use
international norms and ECtHR jurisprudence in their
rulings. On July 27, 2013, the Supreme Court adopted
another resolution on the application of the European
Convention and its protocols by domestic courts.109
It is still extremely rare for Russian judges to refer to
international norms and standards and international or
regional jurisprudence in their decisions.110 The United
Nations Special Rapporteur on the independence of judges and lawyers expressed concern that some members of
the judiciary still perceive the judgements of ECtHR as
interference in Russian domestic affairs and their own
independence.111
The Russian authorities do not always abide by the
judgements of the European Court. The Committee of
Ministers of the Council of Europe, which supervises
the execution of judgments of the ECtHR,112 has adopted
several decisions and resolutions exhorting the Russian
Federation to comply with the judgements of the Court.
In general, the authorities comply with measures concerning monetary compensation ordered by the Court.
The Special Rapporteur emphasized that Russian authorities are also obliged to comply with the other measures
of redress and reparation included in the judgements of
the Court, including amending legislation to prevent further violations when so requested, and individual measures such as re-initiating judicial proceedings. Recent
legislative amendments tend to suggest that the Russian
authorities are trying to address this issue. 113
The Constitution of the Russian Federation grants citizens
rights and liberties under its Chapter 2 entitled “Rights
and Freedoms of Man and Citizen.”105 Moreover, Chapter
1, Article 15 recognizes the precedence of international
law instruments over national legislation.106 Russia has
signed the Universal Declaration of Human Rights and
has signed and ratified the main instruments of Human
Rights protection.107 Some instruments have been signed
just recently, and the ratification is still pending.108
Nevertheless, the Russian Federation has continued to be
accused of human rights violations. In its World Report
of 2014, the Human Rights Watch reported that Russian
authorities continued the crackdown on civil society and
government critics that began in 2012. Enforcement of the
“foreign agents” law led to an unprecedented, nationwide
inspection campaign of hundreds of nongovernmental
organizations (NGOs). Dozens of groups are fighting
the prosecutors in courts, refusing to register as “foreign
agents.” Parliament has adopted laws restricting LGBT
rights and freedom of expression and infringing on the
right to privacy. Abuses in the North Caucasus continue.114
These international instruments were appropriately
ratified in accordance with domestic legal procedures,
became part of the Russian domestic law, and, in theo-
As of 2014, the ECtHR has issued over 200 judgments
holding Russia responsible for serious human rights
violations in Chechnya. While Russia continues to pay
The Russian Legal System
19
the required monetary compensation to victims, it fails
to meaningfully implement the core of the judgments
by not conducting effective investigations, and failing
to hold perpetrators accountable. In October, when the
ECtHR ruled on the case of Abdulkhanov and Others v.
Russia concerning the armed conflict in Chechnya, the
Russian government acknowledged for the first time that
there had been a violation of the right to life.115
In July 2013, the ECtHR ruled that Russia had violated
the European Convention on Human Rights during the
trial and sentencing, on tax evasion and fraud charges, of
former Yukos oil company owner Mikhail Khodorkovsky
in 2005 and awarded U.S. $13,500 damages to the jailed
businessman.116 Mikhail Khodorkovsky received a presidential pardon and was released from prison on December 20, 2013.117
The Government of the United Kingdom holds that the
rule of law in Russia remains inconsistent and is arbitrarily applied. Concerns about the impartiality of courts
are ongoing, and prison conditions remain poor. In July,
a Moscow Court found the late Hermitage Capital lawyer Sergei Magnitsky, who died in pre-trial detention in
2009, guilty of tax evasion. Commenting on the guilty
verdict, UK’s Foreign Office Minister with responsibility
for Russia, Mr. Lidington, described the conviction of a
man who could not defend himself as an “exceptional
step” that would “add to negative perceptions of judicial
process in Russia”. Russian opposition figures, including
Alexei Navalny, continued to face pressure from the authorities. Navalny was sentenced to five years in prison
for embezzling £300,000 from the KirovLes timber firm
in 2009 (later commuted to a suspended sentence). In
a separate and ongoing case, Navalny and his brother
have been accused of defrauding the Russian operation of
the French cosmetics company Yves Rocher of U.S. $1.8
million in 2008. Some observers have suggested that this
case is politically motivated.118
On December 19, 2014, the Russian Duma approved a
prisoner amnesty to mark the 20th anniversary of the
Russian Constitution. Pussy Riot activists Nadezhda
Tolokonnikova and Maria Alyokhina were released from
prison under the amnesty, as were four of the Bolotnaya
protestors. Amnesty International criticized the amnesty for not covering “political prisoners,” and described
it as “no substitute for an effective, independent justice
system.”119
In December 2014, Transparency International published
its annual Perceptions of Corruption Index, which rates
countries according to how corrupt their public sector
is perceived to be. Russia was tied for 127th place out of
the 177 countries surveyed. Russia received 129 violation
judgements at the European Court of Human Rights in
2013, more than any other State Party to the European
Convention on Human Rights.120
20
The Russian Federation has extensive treaty protection
of human rights, it is part of the ECtHR system, and
has legislation enforcing the international human rights
law by the judges. Despite this legal framework, Russia exhibits lack of compliance with the ECtHR system,
minimal utilization of international law by the judges,
systematic human rights violations by the Russian Government, and use of the judiciary branch as a tool of
political persecution.
Crimea is now subject to this legal system, and this raises
concerns, especially considering the history in Chechnya. Thus, Crimea may anticipate the Russian government
to tolerate human rights violations and pursue political
persecution of opponents of the regime.
2. Civil and political rights
1. Right to life
The right to life “ranks as one of the most fundamental
provisions […] to which no derogation is permitted,”121
which simply means that everyone is entitled to live and
to not be deprived of their life, except in clearly defined
and justified cases recognized in international law. It is
therefore unlawful for any person or entity, irrespective
of the legitimacy of their authority, to take the life of another under any circumstances, unless such deprivation
of life is permissible under applicable international law.
The Charter of the United Nations122 as well as other
international treaties123 obliges States to protect human
rights, which includes the right to life, of persons under
their control. This obligation, particularly with respect
to the right to life, is sacrosanct, including in cases where
a State exercises effective control in occupied territories
outside its conventional geographical boundaries.124 For
instance, in the case of occupied Cyprus, the European
Court of Human Rights held the Turkish government
liable for violation of the right to life of an evidently unarmed man who was shot repeatedly by Turkish forces
after he ran into Turkish-controlled Cyprus territory and
attempted to climb a pole on which a Turkish flag was
hoisted.125
Accordingly, Crimea’s status as a Russian-occupied territory notwithstanding, its indigenes and residents are entitled to the protection of their human rights, including
the right to life, by both Russia and Ukraine, as a matter
of international law.
Unfortunately, cases of deprivation of the right to life
in Crimea do exist. A few representative examples are
presented here. The case of the “enforced disappearance
and subsequent killing of Reshat Ametov, a Crimean Tatar from the Simferopol region”126 is a widely reported
instance.127 On March 3, [2014], Reshat Ametov staged
a one-man protest near the building of the Council of
Ministers by standing in front of “people’s self-defense”
forces guarding the building. The same day he disappeared. His mutilated body was found two weeks later; he
appeared to have been tortured.128 In its October 7, 2014
release, Human Rights Watch also reported the forced
disappearance of two Crimean Tatars; “[t]he body of one
was found hanged on October 6.”129 There is also the case
of a 16-year old student, Mark Ivanyuk, who died under unclear circumstances on the highway Chernomorskoe-Olenevka on April 21, 2014.130 The leadership in that
region attributed his death to a hit-and-rUN accident,
but some media reported alleged police involvement.131
Crimea is presently under the effective control of Russia.
It therefore behooves Russia, as a matter of its international law obligation, to ensure that every reported case
of violation of the right to life of a Crimean indigene or
resident is thoroughly and independently investigated,134
and that perpetrators are fully punished. “The obligation
to protect the right to life…, read in conjunction with
the State’s general duty under Article 1 of the [Human
Rights Convention]… requires by implication that there
should be some form of effective official investigation
when individuals have been killed as a result of the use
of force.”135 Where poor or no investigations are done,
image source: Mashable/evgeny feldman
To redress the above and similar cases of violation of
the right to life in Crimea, the specific provisions of the
Council of Europe’s Convention on the Protection of
Human Rights and Fundamental Freedoms (“Human
circumstances where deprivation of the right to life is
legally justified, they amount to violations of the victims’ guaranteed right to life under international and
domestic laws.
Crimean Tatars bow their heads, praying over the body of Rishat Ametov, in the city of Simferopol, Crimea.
Rights Convention”), to which both Russia and Ukraine
are signatories, are relevant. Under Article 2 of this Convention, no person may be deprived of his life except:
(a) in the execution of a sentence of court following the
person’s conviction for an offence punishable by death,
(b) in defense of any person from unlawful violence, (c)
in order to make a lawful arrest or prevent a person from
escaping from lawful detention, or (d) in action lawfully
taken for the purpose of quelling a riot or insurrection.
Both the Russian and Ukrainian Constitutions guarantee the right to life. The former provides that “[e]veryone
shall have the right to life”, and only makes exception in
cases where capital punishment is imposed.132 The latter
likewise provides that “[e]very person has the inalienable
right to life.”133 Therefore, to the extent that the reported killings in Crimea do not fall within the exceptional
Russia would obviously be in dereliction of its obligations
to the international community.
In a related vein, to the extent that the international
community continues to recognize Crimea as part of
Ukraine, Ukraine also has the obligation, within practical limits, to independently and thoroughly investigate
the unlawful killings of Crimean citizens. Where such
investigations implicate persons within Ukrainian control, Ukraine has an obligation to punish those found
liable after a fair and independent judicial trial. Where,
however, the perpetrators are outside Ukrainian territorial control, Ukraine can nevertheless refer the case to
the ECtHR to vindicate the rights of its citizens.136
21
2. Freedom from torture or any other
inhuman treatment
The right to freedom from torture and other inhuman
treatments is closely related to the right to life. This right
forbids the subjection of any person to torture or other
forms of cruel, uncivilized or degrading treatments. Unfortunately, non-democratic regimes rarely uphold this
right, especially where the legality and legitimacy of the
regime’s authority over subjects under its control is being
validly challenged.
Article 1 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”) offers a comprehensive and self-explanatory
definition of torture as:
“
any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession, punishing him for
an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination
of any kind, when such pain or suffering is
inflicted by or at the instigation or with the
consent or acquiescence of a public official
or other person acting in an official capacity.
It does not include pain or suffering arising
only from, inherent in or incidental to lawful
sanctions.” (Italics supplied)
From the foregoing definition, it is obvious that violations
of the right to freedom from torture manifest in several ways. Where, for example, the Police or other forces
of the State subject citizens to interrogations by ordeal,
this would constitute a deprivation of citizens’ right to
freedom from torture and inhuman treatment. Likewise,
where persons acting under the apparent authority of a
State inflict sleep deprivation, electric shocks, physical
beatings, traumatic gUN shootings, and similar calculated pains and extreme discomforts on persons under
the control of the State, they violate their victims’ rights
to freedom from torture. In short, the need to ensure
that the coercive apparatuses of States are not improperly
trained on subjects of the State through extra-judicial
infliction of pains and sufferings lies at the core of the
right to freedom from torture.
The obligation to prevent and redress infractions on the
right to freedom from torture is firmly rooted in international law. Both Russia and Ukraine are signatories
to the relevant Conventions that obligate them to prevent and redress torture, cruel and/or inhuman or degrading treatments on any person.137 For all intents and
purposes, this obligation remains applicable, including
22
in cases where infractions on the right to freedom from
torture occur in occupied territories under their control.
In this connection, the CAT requires States to adopt effective measures to prevent torture in territories under
their jurisdiction.138 By its reference to “territory under
[a State’s] jurisdiction,” the CAT makes it clear that the
availability of the right to freedom from torture is not
limited to only the internationally recognized geographical territory of a State. As such, where a State becomes
an occupying power, as in the case of Russia in Crimea,
the common understanding is that its obligation to secure the right to freedom from torture would apply in its
occupied territories.139 The Constitution of Crimea before
its occupation by Russia generally guaranteed the human
and civil rights of citizens of Crimea.140 Russia, being an
occupying power, is accordingly required to uphold the
existing legal protection of the fundamental rights of
persons in Crimea. Moreover, Article 21 of the Russian
Constitution stipulates that the Russian State shall protect the dignity of persons; that “no circumstance shall be
used as an excuse for belittling” that right; and that “no
person shall be subjected to torture, violence or any other
harsh or humiliating treatment.” Put simply, citizens of
Crimea are entitled to the right to freedom from torture
and other inhuman treatments to the same full extent
as their counterparts in Russia and mainland Ukraine.
Presently, however, it does not appear that the right to
freedom from torture is being adequately guaranteed
in Crimea. The so-called Crimean “self-defense” forces,
which are backed by the occupying Russian administration, have been implicated in a number of cases of
violations of the right to freedom from torture. There
is the infamous case of the kidnapping and detention
of two political activists, Andriy ShekUN and Anatoly Kovalsky.141 ShekUN narrated instances of torture
and inhuman treatments meted out to him and other
detainees, ranging from beatings and electric shocks to
being hit on the back with a hot object and being shot
with a traumatic (non-lethal) weapon.142 Furthermore,
in its 2014 publication, Rights in Retreat, Human Rights
Watch chronicled several cases of infliction of torture on
citizens of Crimea.143 These include the beating of Sergey
Mokrushin and Vladlen Melnikov, both journalists, and
Abduraman Egiz for “publicly singing a song featuring
profane lyrics” about the Russian President Putin and
refusing to produce his documents to self-defense forces in the absence of the Police.144 Another journalist,
Osman Pashayev, as well as several journalists working
with ATR, the major Crimean Tatar television channel,
has also been beaten by special forces for filming public
gatherings.145
The above and similar violations of the right to freedom
from torture and inhuman treatment are made even
more worrisome by the seeming official endorsement
of the actions of the “self-defense” forces. While the
“self-defense” forces have no defined legal status under
either Russian or Ukrainian laws, the local legislative
body in occupied Crimea has reportedly proposed legislation to grant amnesty to members of this force for
their post-February 2014 actions.146 In effect, the passage
of this legislation would provide members of the “special
forces” with immunity from criminal liability for their
offences. Regrettably, reports to the Police in Crimea
about incidences of torture and inhuman treatment by
the “self-defense” forces have generally been treated by
Crimean officials with levity, with no meaningful investigations being pursued.
Against the backdrop of Russia’s apparent apathy to the
excesses of the “self-defense” forces, remedies for vindicating Crimea citizens’ right to freedom from torture
might well be only available at the international level.
ECtHR jurisprudence recognizes that where local remedies are non-existent, or existent but practically ineffective in protecting the rights guaranteed under the
Human Rights Convention, an application may be made
directly to the ECtHR without the need to comply with
exhaustion of local remedies.147 In this connection, it is
commendable that Ukraine has lodged an application
before the ECtHR against Russia for, amongst other
wrongdoings, breaches of the freedom from torture of
civilians in occupied Crimea, in violation of Article 3 of
the Human Rights Convention.148 This step is consistent
with the legislation passed by Ukraine for securing the
rights and freedoms of citizens of Crimea.149 In addition
to this inter-state application, there are several other individual applications before the ECtHR filed against both
Russia and Ukraine.150
Without prejudice to the foregoing proceedings,
however, Russia should heed the repeated calls on it and
its installed local authorities in Crimea to disband the
“self-defense” forces to forestall further violations.151 Furthermore, Russia should emulate Ukraine by ratifying
the Optional Protocol to the CAT as a demonstration
of its commitment to the protection of persons in occupied Crimea from torture and other forms of inhuman
treatments. Such ratification would create in Russia the
enhanced legal framework contemplated by the Protocol,
where “independent international and national bodies
[would pay regular visits] to places where people are deprived of their liberty, in order to prevent torture and
other cruel, inhuman or degrading treatment or punishment.”152
3. Access to justice
The Article 8 of the Universal Declaration of Human
Rights expresses the core of the right of access to justice as: “Everyone has the right to an effective remedy
by the competent national tribunals for acts violating
the fundamental rights granted him by the constitution
or by law.”153
This right does not restrict its reach to mere access to
the courts. Its true range comprehends a judicial system
that effectively protects other human rights. The United Nations Development Programme (UNDP) defines
it as: “The ability of people to seek and obtain a remedy
through formal or informal institutions of justice, and in
conformity with human rights standards.”154
The jurisprudence of the ECtHR confirmed, in Golder v
United Kingdom (1975), that this right in not only limited
to fair and public hearing guarantees in regular procedures once a hearing has begun, but also to the access
to the courts.155
Nevertheless, the ECtHR recognizes some limitations to
the right of access by stating that: “these are permitted
by implication since the right of access, by its very nature
calls for regulation by the State, regulation which may
vary in time and in place according to the needs and
resources of the community and of individuals.”156
Permissible limitations may not “restrict or reduce the
access left to the individual in such a way or to such an
extent that the very essence of the right is impaired.” A
limitation might violate the right of access to the court
if it does not pursue a legitimate aim or if there is not a
“reasonable relationship of proportionality between the
means employed and the aim sought to be achieved.”157
In Airey v Ireland (1979), the ECtHR has also held that
excessive costs and fees that prevent individuals from
pursuing litigation may violate this right. The state has
an obligation to provide legal aid in civil cases when legal representation “proves indispensable for an effective
access to court either because legal representation is rendered compulsory […] or by reason of the complexity of
the procedure or of the case.”158
Beginning in 2014, 24 local courts (district, town and
town-district courts) operated in the Autonomous Republic of Crimea (ARC). Four district courts operated
in Sevastopol. The Appeal Court of ARC, the Appeal
Court of Sevastopol, the Administrative Court of ARC,
the Administrative Court of Sevastopol, the Commerce
Court of ARC, the Commerce Court of Sevastopol, the
Appeal Administrative Court (Sevastopol) and the Appeal Commerce Court (Simferopol) also existed.159
After the illegal annexation of Crimea by the Russian
Federation, the judicial system in the region remains
practically paralyzed. Ukrainian laws were in effect in
Crimea until December 31, 2014.160 The judicial system is
already being transformed to use Russian laws: restriction measures are implemented pursuant to the Criminal Procedural Code of the Russian Federation, and
judicial decisions are adopted in the name of the Russian
Federation. Pending cases not decided by March 18, 2014
must be tried in accordance with the laws of the Russian
23
Federation. This poses numerous problems in practice,
especially in administrative and criminal cases, when
Russian and Ukrainian legislation differs on the existence, nature and scope of rights and obligations; and
available remedies and sanctions. The outcome of court
decisions that are currently being appealed is unclear.161
There are reports that at least 15,000 judicial cases are in
legal limbo between Ukrainian and Russian laws. The
Ukrainian “Law on the Occupied Territories” allows the
transfer of judicial cases from the peninsula to Kyiv but,
in practice, this is unlikely to happen. The United Nations Human Rights Monitoring Mission notes that the
current situation has detrimental consequences affecting
access to justice, the right to fair trial and due process for
Crimean residents.162
Source: businessinsider.com
The Russian Federation considers Crimea as its own
territory. The Supreme Council of ARC adopted on
March 17, 2014 the Resolution “On the Independence
of Crimea” № 1745-6/14. From February 21, 2014 (the
day this Resolution was enacted), any Ukrainian legislation, resolutions of the Supreme Council of Ukraine
and of other state bodies of Ukraine are not applicable
or implemented in the territory of the new so-called “Republic of Crimea.” Other Ukrainian laws (i.e. laws about
court system) do apply in the territory of the Republic of
Crimea until they are replaced by relevant regulations of
the Republic of Crimea.163
24
The Russian court system established in Crimea differs in
some ways from the Ukrainian system, e.g., there are no
administrative courts in Russia, so claims against illegal
actions by state authorities must be submitted to local
common courts. Russia has no institute of investigation
judge; this results in fewer trial rights guarantees to the
participants in a criminal trial. On the other hand, the
Russian Federation has special military courts; similar
courts were eliminated in Ukraine in 2001-2010 because
they were considered in violation of the principle of independent courts.164
The Russian Federation created its own court system in
Crimea on June 23, 2014, when four federal laws were adopted (№ 10-ФКЗ, № 154-ФЗ, № 155-ФЗ and № 156-ФЗ).
These laws created 24 local district and town courts in
the Republic of Crimea and 4 district courts in Sevastopol – all based on former Ukrainian zones. The Russian
Federation also created the “Supreme Court of the Republic of Crimea”, “Sevastopol City Court”, “Arbitration
Court of the Republic of Crimea”, “Arbitration Court of
Sevastopol City” and “21st Appellate Arbitration Court”
in Sevastopol; Crimean and Sevastopol garrison military
courts were created. According to the Russian law, these
courts must be formed by July 1, 2015.165
According to the Russian law № 156-ФЗ, former
Ukrainian judges of Crimean courts, i.e. Crimean Tatars, got the “preemptive right” to hold their positions of
judges in the courts of the Russian Federation in Crimea
provided that the judges acquire Russian citizenship and
meet qualification requirements for candidates for the
post of a judge. (It is not clear if these judges can in fact
meet the stated requirement for extensive training in
Ukraine or Russia).166
Crimea has joined Transnistria, South Ossetia, Abkhazia
and Nagorno-Karabakh on the list of disputed entities
in the former Soviet Union. Because these areas exist in
a legal vacuum, and in view of the danger of the situation spreading, the International Federation for Human
Rights (“FIDH”) stated in a report prepared with the support of the Ministry for Foreign Affairs of Finland that
the 3.3 million people who live in these disputed entities
may find themselves without access to justice for human
rights violations. Consequently, the report stated that not
only the de facto authorities, and the States supporting
them, but also the de jure authorities and the international community must take action to protect them.167
Members of the FIDH board declared that: “If the international community fails to take action on these situations, human rights violations will continue, conflicts
can break out and there is a real risk of other territorial
disputes like Crimea or South Ossetia erupting in Eastern Europe, but also in Central Asia.”168
Therefore, despite the existing legal framework given by
the Russian Federation, access to justice does not seem to
be protected. This situation exists in spite of legal systems
that appear to provide such protection. As exemplified
in ongoing rights violations, access to courts is difficult
under the rule of Russian authorities. Consequently, even
the establishment of a judicial system does not mean that
the citizens of the illegally occupied territory of Crimea
will have access to justice.
4. Right to nationality
The UN General Assembly Resolution dated March 27,
2014169 on the “Territorial Integrity of Ukraine” (the
“G.A. Res”) stresses that the referendum for Annexation
of Crimea into the Russian Federation, held in the Autonomous Republic of Crimea and the city of Sevastopol
on March 16, 2014 (the “Referendum”), is invalid. The
G.A. Res also specifically reiterates that the Referendum
cannot form the basis for any alteration of the status of
the Autonomous Republic of Crimea or the city of Sevastopol. As the Referendum remains invalid, any action
taken by the Russian Federation, including the granting
of Russian citizenship to people of Crimea, is void ab
initio as per the G.A. Res and the principles of international law.
On April 28, 2014, the law enacted by the Ukrainian Government “On Guaranteeing Citizen’s Rights and Freedoms and Legal Regime in the Temporarily Occupied
Territory of Ukraine” came into force (the “Law on Occupied Crimea”). The Law on Occupied Crimea defines
the “Occupied Territory” as including the land mass of
and the air space above the Republic of Crimea and the
city of Sevastopol, as well as inland waters, territorial sea,
the exclusive economic zone along the seaboard and the
continental shelf of the Crimean Peninsula.170 Thus, the
Law on Occupied Crimea extends to the whole of the
land and water mass of Crimea and the city of Sevastopol.
The Law on Occupied Crimea reiterates Ukraine’s sovereignty on the “Occupied Territory” and aims to establish a special legal regime for the temporarily Occupied
Territory.171 It imposes responsibility on the Russian
Federation for the compensation of pecuniary and moral damages caused to the state of Ukraine, individuals,
legal entities, civic organizations, citizens of Ukraine,
foreigners and stateless persons because of the temporary
occupation of the Occupied Territory by Russia.172,173
One of the basic human rights being denied to the Crimean people is the right to nationality. Following the invalid
Referendum, the Russian Federation has been imposing its own legal framework on the people of Crimea at
variance with the G.A. Res. The Referendum stipulates
that citizens of Ukraine and stateless persons permanently residing in Crimea or Sevastopol as of March 18,
2014, are to be recognized as the citizens of the Russian
Federation, with the exception of such residents who declare a desire to maintain their or their minor children’s
Ukrainian citizenship by April 18, 2014.
The procedures that were available to Crimean residents
to declare and retain their Ukrainian citizenship were
arbitrarily imposed by the de facto occupying power (the
Russian Federation) and were used as a means of forcing
Crimean residents to take up Russian citizenship. The
May report of HRMMU identifies the following difficulties faced by the Crimean residents who refused to accept
Russian citizenship: (1) the period granted for initiating
the procedure of refusing Russian citizenship (April 18)
was too short; (2) the instructions from the Russian Federal Migration Service (FMS) on the refusal procedure
were only available as of April 1; (3) the information about
FMS points was not available until April 4; (4) between
April 4-9, only two FMS points were functioning – in Sevastopol and in Simferopol; (5) as of April 10, 9 FMS points
were working: Sevastopol, Simferopol, Yalta, Bakhchisaray, Bilogorsk, Evpatoriya, Saki, Kerch and Dzhankoy;
(6) some requirements in the procedure of refusing Russian citizenship evolved over time, such as the necessity
to make the application in person, and that both parents
were required for the application of a child. It is pertinent
to note that Article 5 of the Law of the Occupied Territory
does not recognize the compulsory automatic enrollment
of the Crimean residents to the citizenship of the Russian
Federation and that such enrollment is not grounds for
deprivation of Ukrainian citizenship.
25
Source: Mashable/Evgeny Feldman
With the imposition of citizenship by the Russian Federation and non-recognition of automatic enrollment into
Russian citizenship by the Ukrainian Government, the
legal status, property rights, access to education, health
care and employment opportunities of the Crimean
residents remain a concern. The HRMMU report dated
June 15, 2014 notes that the Judges of the Crimean Commercial Court in Simferopol and the administrative staff
who were granted Russian citizenship were reportedly
compelled to complete the application forms renouncing
their Ukrainian citizenship. The legal status of refugees,
prisoners, and orphans remains unclear. In a reported
incident, some 4000 orphaned children were forcibly
granted Russian citizenship and were deprived of their
Ukrainian citizenship. This implicates serious violations
under the International Convention on the Rights of the
Child.174 In the process of forcibly granting citizenship
to Crimean residents, the Russian President introduced
amendments to the law “On Citizenship of the Russian
Federation,” introducing criminal responsibility for the
concealment of the dual citizenship. According to the
amended law, those concealing their second citizenship
by failing to notify the FMS within two months from
the date of acquisition of the second citizenship, will be
fined up to 200,000 Rubles or subjected to compulsory
community service of up to 400 hours. This law was expected to take force on January 1, 2016.175
As the Russian Federation applies its own laws and regulations to Crimea in contravention with the G.A. Res,
the legal status of the Crimean residents and the entitlements of their Ukrainian citizenship remain unclear.
A Ukrainian filmmaker, Oleg Sentsov, was arrested in
Crimea on terrorism charges. Even though Mr. Sentsov
26
was a Ukrainian citizen, the Federal Security Service
of the Russian Federation allegedly wrote in the official
investigation file that he was a Russian citizen with a
Ukrainian passport. It appears that as Sentsov had not
explicitly renounced his Ukrainian citizenship before
April 18, 2014, he is considered to be a Russian citizen in
accordance with the imposed laws of the Russian Federation on the Occupied Territory. Another shocking consequence of the forced imposition of the Russian laws
is noted in the HRMMU report from July 15, 2014. For
employment purposes, Ukrainian nationals who are resident in Crimea and who have refused to take up Russian
citizenship are now considered to be foreigners and may
be employed only if their employer obtains a permit to
employ foreigners. A quota system providing the number
of foreigners who could be employed in Crimea is provided by the Russian Federation. Employers had very little
notice of the need to apply for a permit, and the deadline
to apply for such a permit expired on July 15, 2014. The
employers who do not obtain the valid permit are at a
risk of being fined 800,000 Rubles.176
These cases are examples of clear and obvious violations
of the international law and the basic standards of human
rights protection.
5. Right to privacy and family rights
The European Convention on Human Rights provides
that everyone has the right to respect for his private and
family life, his home and his correspondence.177 The International Convention on Civil and Political Rights inter
alia prohibits arbitrary or unlawful interference with an
individual’s privacy, family, and home.178 The Consti-
tution of Ukraine “guards” one’s family and prohibits
interference in one’s family and domestic life.179 Since the
occupation of Crimea by the Russian Federation, there
have been many reported instances of privacy and family
rights violations.
The homes of many Tatars and pro-Ukrainian individuals have been searched for “extremist literature.”
According to the HRMMU report dated September
15, 2014, the Russian Federal Security Service (“FSB”)
conducted a house search of a Crimean Tatar family in
Bakhchisaray on August 19, 2014, and allegedly seized
“extremist literature” and a gUN from the house. On
August 26, 2014, the director of Dzhankoy Madrassa was
fined 2,000 rubles for alleged storage and distribution of
extremist literature. On August 28, 2014, several police
officers searched the house of a Crimean Tatar family for
drugs and weapons, but instead confiscated “extremist
literature.”180 Many searches of Crimean Tatar and proUkraine population’s houses were carried out by the FSB
along with the “people’s militia” under the Russia’s Federal Law on Combating Extremist Activity of the Russian
Federation (“Anti Extremist Legislation”)
The Venice Commission Draft Opinion on the Anti-Extremist Legislation is helpful in understanding the
Russian federal law under which the privacy and family rights of the Crimean residents have been interfered
with.181 Much of the literature seized by the FSB was
characterized as “Extremist Documents.” The Venice
Commission Opinion points out that the definition of
“Extremist Documents” in the Anti-Extremist Legislation is broad and imprecise and has the potential to
open the way to arbitrariness and abuse by its enforcement agencies.182 The Commission considers the entire
Anti-Extremist Legislation to be broad and opines that
the wide discretion given by the law to its enforcement
agencies in its interpretation and application can lead to
arbitrariness.183
The Venice Commission is of the opinion that the Anti-Extremist Legislation has the capacity to impose severe
restrictions on the fundamental rights and freedoms enshrined in the European Convention on Human Rights
and infringes on the principles of legality, necessity and
proportionality.184 Against the backdrop of the reported events and the Venice Commission opinion on the
Anti-Extremist Legislation of the Russian Federation,
it can be inferred that the family and privacy rights of
the Crimean residents have been violated by the Russian
Federation and those actions are against the principles
of the international law and the Ukrainian Constitution.
6. Liberty and security of person
“Everyone has the right to liberty and security of person,” the UDHR stipulates.185 The right to liberty and
security is an umbrella right encompassing a number of
individual freedoms that the civilized States are obligated
to protect. These include but are not necessarily limited
to freedom from arbitrary arrests and/or detentions and
protection from enforced disappearances.
The right to liberty and security exists to ensure that subjects of a State can pursue their daily activities without
harassment or apprehension of being restrained without
any lawful basis. An arbitrary arrest or detention of a
person, or both, by the authorities of the State is a classic example of interference with the right to liberty and
security. Several other situations also qualify as potential infractions on this right. For example, when a State
places unreasonable restrictions on the movement of persons within an occupied territory through unnecessary
curfews,186 or is complicit in the abduction of subjects
who express views that the State considers antagonistic,
such a State would be in violation of its subjects’ rights
to liberty and security. When arrests are based on reasonable suspicions, an infringement is likely when the
suspect is not informed of the reason for his arrest and
not charged before a competent court in a timely manner. Even in occupied territories, civilian populations are
entitled to go about their everyday legitimate business
without being subjected to restraints by the authorities
of the State. Therefore, measures of the State targeted at
impeding the freedom of persons under its control to
live and move about freely are potential violations of the
right to liberty and security of person.
A number of international legal instruments protect the
right to liberty and security of person. In addition to the
UDHR quoted above, both the International Covenant
on Civil and Political Rights187 and the Human Rights
Convention188 guarantee protection of the right. A common theme runs through these instruments: a person
may not be deprived of his liberty except for the purposes
of lawful arrest or detention, in which case the suspect
must be promptly informed of the reason for the arrest
and brought before a court. Conversely, where a deprivation of the right to liberty and security has been established, these Conventions confirm the associated right of
the person whose liberty and security has been deprived
to seek and obtain adequate compensation. Both Russia
and Ukraine are State-parties to these Conventions.
The International Convention for the Protection of All
Persons from Enforced Disappearances (“CPED”) is
another international legal instrument that protects an
aspect of the general right to liberty and security of person. In crisp and unambiguous terms, this Convention
roundly prohibits enforced disappearances under any
circumstances. “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may
be invoked as justification for enforced disappearance.”189
Article 2 of CPED defines “enforced disappearance” as:
27
“
Deprivation of a person’s right to liberty and security
through enforced disappearance is so serious that an enforced disappearance is considered a crime against humanity.190 The CPED therefore obligates each State-party
to accord commensurate criminal sanctions to persons
who are complicit in enforced disappearances. State-parties are required to train its law enforcement personnel
and similar agencies to be aware of the responsibility of
the State under the CPED.191
Unfortunately, neither Russia nor Ukraine have signed
or ratified the CPED. Nonetheless, to the extent that
enforced disappearances constitute a crime against humanity, the obligations placed on States by the CPED
arguably represent customary international law, which
the two countries are required to respect.
At the national level, the Law of Ukraine on Securing
the Right and Freedom of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine
(“Law on Occupied Territory”) generally recognizes the
human rights of the Crimean citizens, which necessarily includes the right to liberty and security of person.
Likewise, Article 22 of the Russian Constitution states
that every person “shall have the right to freedom and
personal inviolability.”
In spite of the foregoing international and domestic legal guarantees of the right to personal liberty and security, violations are apparently rife in occupied Crimea.
Reports by both the Commissioner for Human Rights
of the Council of Europe and Human Rights Watch
describe several individual cases of unlawful arrests
and detentions or apparent enforced disappearances.
The former report specifically “noted with concern
that at least some of the [recorded cases of enforced
disappearance] involved activists who – according to
various reports – have openly expressed critical views
of the events unfolding in [Crimea] after February
2014.”192 The latter report alluded to its previous releases, which documented “at least 15 cases in which
Crimean Tatars or pro-Ukraine activists were forcibly
disappeared or abducted, or went missing in Crimea
since March 2014.”193 On the whole, since the occupation of Crimea by the Russian Federation, apprehensions of the deprivation of the right to liberty and
security appear heightened.
28
Source: pbs.twimg.com
[…] the arrest, detention, abduction or any
other form of deprivation of liberty by
agents of the State or by persons or group of
persons acting with the authorization, support or acquiescence of the State, followed
by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or
whereabouts of the disappeared person,
which place such a person outside the protection of the law.”
To check the trend, both Russia and Ukraine need to live
up to their international and national responsibilities.
First, both States should galvanize their law enforcement
apparatuses to conduct proper and thorough investigations into the recurring cases of unlawful arrests, detentions and enforced disappearances. Both countries
should urgently move to ratify the CPED and allow for
the Committee established under that instrument to entertain complaints from the citizens of Crimea and other parties regarding cases of enforced disappearance.194
Such a step would obviously temper the apparently prevailing insinuations that the occupying power in Crimea
is privy – directly or indirectly – to the incidences of
enforced disappearances in that territory.
There is precedent in ECtHR jurisprudence for holding
an occupying power liable for violation of the right to
liberty and security arising from the failure of authorities
to investigate the fate and whereabouts of Greek-Cypriot
missing persons in its occupied territory.195
Finally, the international community should increase its
surveillance of the cases of deprivation of liberty and security in occupied Crimea. Given that serious cases such
as enforced disappearances amount to crimes against
humanity, it is the responsibility of every State in the
international community to collaborate and assist in ensuring that such cases and the perpetrators are exposed
and held accountable.
7. Freedom of thought
Freedom of thought (also called freedom of belief, conscience or religion) is a central civil and political human
right. It is protected by various international instruments
and is closely connected to other fundamental rights,
such as freedom of speech or freedom of assembly. In
authoritarian regimes, freedom of thoughts is violated if
the authorities discriminate against or persecute members of all or of certain religious beliefs or organizations.
Freedom of thought guarantees the right of individuals
to manifest their religion or belief, in worship, teaching,
practice and observance, either alone or in communi-
ty with others and in public or private. But freedom of
thought does not only include the right to belong to a
religion, but also to change one’s religion, to discontinue
membership of a certain religion or not to follow any
religion at all.
In every jurisdiction there are certain limitations of
freedom of thoughts necessary for the functioning of a
democratic society. Such limitations are in accordance
with international law as long as they are proportionate
and not used to oppress the nature of free assembly. Restrictions of freedom of thought are, inter alia, admissible
if they are necessary in the interests of public safety, for
the protection of public order, health or morals, or for the
protection of the rights and freedoms of others.
Against this background, the human right to freedom of
thoughts guarantees all persons in Crimea the right to
manifest their religion or belief, especially in public and
in community with others (e.g. taking part in church
services, organizing religious processions, displaying
religious symbols in public, etc.).
Freedom of thoughts in Crimea as protected by various
international instruments is not altered by the fact that
this region is currently occupied by the Russian Federation. An occupying power generally has to respect the
laws in force in the affected country.196 Furthermore, both
Ukraine and the Russian Federation are members to human rights treaties that are relevant for the protection of
freedom of thoughts.
Current situation in Crimea / Reports about violations
According to the reports of human rights organizations,
freedom of thoughts is de facto not guaranteed in Crimea
(especially since its annexation by the Russian Federation). The religious population of Ukraine – as well as
Crimea – adheres to different faiths and churches. The
majority of religious Ukrainians follows Eastern Orthodox Christianity. However, there are three competing
Orthodox churches in the country: The Ukrainian Orthodox Church (Moscow Patriarchate), the Ukrainian
Orthodox Church (Kyiv Patriarchate) as well as the
Ukrainian Autocephalous Orthodox Church. In addition, there is the Ukrainian Greek Catholic Church,
the Roman Catholic Church and several other Christian churches. Also an Islamic minority exists (mostly
in Crimea).
Against this backdrop, it is reported that the Crimean authorities are harassing all churches and religious
communities except for the Ukrainian Orthodox Church
(Moscow Patriarchate) that belongs to the Russian Orthodox Church that has close political ties with the
Russian government.197 As a result, other churches or
beliefs are seen as anti-Russian. The Crimean Tatars are
predominantly Muslim, strongly oppose Crimea’s an-
nexation by the Russian Federation, and are frequently
targeted by the authorities. In doing so, Russian and
Crimean forces regularly misuse Russian counterterrorism law. For instance, the “Federal List of Extremist Materials” banning the possession of certain publications
(including audio and video materials) includes Islamic
literature without extremist content.198 Against this background, the Crimean authorities have launched a campaign against “extremist religious literature.”199 Armed
forces have searched several mosques and Islamic schools
operated by the Crimean Tatars. Members of this ethnic
group have been detained for several hours by law enforcement and security personnel, and questioned about
their religious beliefs.200
Political pressure is also being applied to Christian churches in Crimea. Archbishop Kliment of the
Ukrainian Orthodox Church (Kyiv Patriarchate) reported that several of his churches were seized and transferred to the Ukrainian Orthodox Church (Moscow Patriarchate).201 Various acts of violence and intimidation
against the priests, believers and property of the Kyiv
Patriarchate have also been reported.202 Similar pressure
and harassment is being experienced by the Ukrainian
Greek Catholic Church and by the Catholic Church
which are both seen as anti-Russian by the Crimean authorities.203
International, national and regional guarantees of
this right relating to Crimea
Freedom of Thought under International Law
Freedom of thought is protected by various international
legal instruments. Article 18 of UDHR 204 states that everyone has the right to freedom of thought, conscience
and religion. This right includes freedom to change one’s
religion or belief, and freedom, either alone or in community with others and in public or private, to manifest
one’s religion or belief in teaching, practice, worship and
observance.
Article 18 of the ICCPR guarantees the right to freedom
of thoughts, conscience and religion. Restrictions of the
right to freedom of thoughts are admissible as long as
they are in conformity with the law and are necessary
to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.
A very important instrument for the protection of freedom of thoughts in international law is the European
Convention on Human Rights (“ECHR”).205 Article 9
of the ECHR provides that everyone has the right to
freedom of thought, conscience and religion. This right
includes freedom to change one›s religion or belief and
freedom, either alone or in community with others and
in public or private, to manifest one›s religion or belief,
in worship, teaching, practice and observance. Article 9
29
subsection 2 of the ECHR states that the exercise of this
freedom may be restricted if such measures are prescribed by law and are necessary in a democratic society.
Furthermore, restrictions of freedom of thought have to
be connected to one of the following reasons: interests of
public safety; protection of public order, health or morals;
or protection of the rights and freedoms of others.
Freedom of thought is also covered by Article 14 of the
Convention on the Rights of the Child (“CROC”).206 Here
the same restrictions apply as in the case of the ICCPR.
Both Ukraine and the Russian Federation are parties to
the CROC. 207
The legal instruments on the freedom of thoughts as outlined above continue to be applicable even if a certain
territory is occupied by another country. In addition, Article 58 of the Fourth Geneva Convention208 provides that
the Occupying Power has to permit ministers of religion
to give spiritual assistance to the members of their religious communities. Article 15 of the First Protocol209 to
this Convention states that the Occupying Power should
respect and protect civilian religious personnel. Finally,
Article 69 of this Protocol demands that the Occupying
Power ensure the provision of, inter alia, objects necessary for religious worship. Both Ukraine and the Russian
Federation are parties to the Fourth Geneva Convention
and its First Protocol. Consequently, the legal status of
Crimea should have no effect at all on the exercise of freedom of thoughts as guaranteed under the above-mentioned instruments.
Freedom of Thought under the Constitutions of Ukraine
and of the Autonomous Republic of Crimea210
Freedom of thought is protected under Article 35 of the
Ukrainian Constitution.211 This provision states, inter
alia, that everyone has the right to freedom of personal
philosophy and religion. This right includes the freedom
to profess or not to profess any religion, to perform alone
or collectively and without constraint religious rites and
ceremonial rituals, and to conduct religious activity.
The exercise of these rights may be restricted, but only
under such circumstances as are also listed in Article 9
subsection 2 of the ECHR. In addition, however, freedom
of thoughts can also be restricted under conditions of
martial law or a state of emergency as set out in Article 64.
Although the Ukrainian Constitution has been amended
several times since its adoption in 1996, such amendments did not alter Article 35 on freedom of thought.
The Constitution of the Autonomous Republic of Crimea,212
adopted in 1998, does not contain a catalogue of fundamental rights comparable to the Ukrainian Constitution.
However, Article 9 subsection 1 holds that human and civil
rights and freedoms in the Autonomous Republic of Crimea
should be established and guaranteed by the Constitution
30
of Ukraine and Ukrainian laws, and, pursuant to the
same, by the Constitution of the Autonomous Republic of
Crimea. As a result, all human rights guarantees under the
Ukrainian Constitution are adopted by the Constitution
of the Autonomous Republic of Crimea.
Freedom of Thought under the Constitutions of the
Russian Federation and of the Republic of Crimea213
Article 28 of the Russian Constitution214 guarantees everyone the freedom of conscience and religion, including the
right to profess individually or collectively any religion or
not to profess any religion, and freely to choose, possess
and disseminate religious and other convictions and act in
accordance with them. According to Article 56 subsection
3, freedom of thought as specified in Article 28 must not
be restricted (even in the case of a state of emergency).
Freedom of thought is also guaranteed by Article 21
of the Constitution of the «Republic of Crimea» (as a
federal subject of the Russian Federation). The content
of this provision corresponds to Article 28 of the Russian
Constitution.
Despite the formal protection of freedom of thoughts
pursuant to Article 28 of the Russian Constitution, the
Russian government has enacted various laws that effectively restrict this fundamental right. Since the annexation
by the Russian Federation, the respective legal framework
is also applied to Crimea. As reported above, the Russian
and Crimean authorities regularly use counterterrorism
laws to restrict the rights of certain religious groups.
8. Freedom of speech
Description of this right
Freedom of speech is one of the most fundamental rights
in a free and democratic society.215 It is also closely related
to other basic rights like freedom of assembly and freedom of thought. Furthermore, freedom of speech creates
the conditions for people’s participation in politics in the
first place. It is, therefore, no surprise that this human
right is one of the main targets of repressive regimes. Authoritarian political systems can only exist if they closely
control public opinion.
Freedom of speech is protected by various international
legal instruments and has a wide range of application. It
guarantees the free expression of opinions and ideas in
oral and/or written form regardless of which medium is
used. In addition, it also guarantees activities apart from
oral or written communication, such as the waving of a
flag, the use of symbols or even wearing a certain haircut
or certain clothes. The scope of application of this human
right also encompasses commercial speech, satire, comedy, and caricatures. Another very important aspect of
freedom of speech is the freedom of the press. This in-
cludes the classic print media (e.g. newspapers, magazines,
books), radio and television broadcasts, as well as all forms
of electronic media (e.g. webpages, blogs, online discussion
boards). In this regard, freedom of speech also includes the
right to receive information (e.g. the right to listen to certain radio or TV stations or to read certain newspapers).
However, in every jurisdiction there are certain limitations of the freedom of speech necessary for the functioning of a democratic society. Such limitations are in
accordance with international law as long as they are
proportionate and not used to oppress the nature of free
speech. Common admissible limitations relate to inflammatory speech that seeks to incite others to lawless
action, libel, obscenity, classified information, copyright
violation or public nuisance.
Against this backdrop, the human right of free speech
guarantees all persons in Crimea, for instance, the right
to criticize the authorities (e.g. the Crimean, Ukrainian
or Russian government), to talk in private or public about
one’s opinion about Crimean authorities or the legal status of Crimea, to display flags and symbols and to disseminate ideas using all kinds of media (e.g. newspapers,
online blogs).
Freedom of speech in Crimea as protected by various international instruments is not altered by the fact that this
region is currently occupied by the Russian Federation.
An occupying power generally has to respect the laws
in force in the affected country.216 Furthermore, both
Ukraine and the Russian Federation are signatories to
human rights treaties that are relevant for the protection
of free speech.
Current situation in Crimea / Reports about
violations of the freedom of speech
According to the reports of numerous human rights
organizations, freedom of speech is under siege in
Crimea (especially since its annexation by the Russian
Federation). The Russian and Crimean authorities try
to obstruct the work of all media that are seen as “anti-Russian.” This applies above all to media controlled
by Ukrainian or Crimean Tatar organizations or companies, but also in general to all media that are in any
way critical of Crimea’s annexation.217
The four most important means by which the Crimean
authorities suppress free speech are discussed below.
1) Misuse of the counterterrorism law218
One of the most used and most effective means to suppress freedom of speech in Crimea is the application of
the Russian Federal Law no. 114-FZ “On Combating
Extremist Activities.” This law was enacted in July 2002
and created the legal basis for banning certain publi-
cations (including audio and video materials) listed in
the “Federal List of Extremist Materials.”219 One must
concede that the Russian Federation has the right and the
duty to fight terrorism. On the other hand, the Russian
authorities regularly misuse the counterterrorism law
for political reasons. For example, the “List of Extremist
Materials” is used to ban literature that has no extremist connection at all. Because this list is confusing and
in some instances even contradictory, there is great uncertainty among the Crimean population about which
publications are affected by the list.220
The Russian counterterrorism law is mainly used to target media outlets of the Crimean Tatars who are predominantly Muslim.221 The most important newspaper of the
Crimean Tatars (“Avdet”) as well as the only Crimean
Tatar television channel (“ATR”) both have been accused
of containing “extremist” content by Crimean authorities.222 It is obvious that the Russian authorities try to
misuse the fight against worldwide Islamic terrorism in
order to obstruct Crimean Tatar media. But the Russian
counterterrorism law is also used to persecute Ukrainian
media. For instance, the pro-Ukrainian activist Elizaveta
Bohutska, who openly criticized the Russian annexation
of Crimea, was accused of association with terrorism by
the Crimean authorities. Since she advocated the “return
of Crimea to Ukraine,” she was also accused of “inciting
separatism”. Authorities seized some of her media equipment and questioned her for several hours without her
lawyer present.223
2) Threats and abuse by “self-defense units”
Another threat to freedom of speech in Crimea are the
so-called “self-defense units.” These armed paramilitary
groups appeared before the referendum about Crimea’s
status in March 2014 to intimidate the pro-Ukrainian
opposition. In June 2014, the parliament of Crimea legalized these groups and authorized them, inter alia, to
check and detain persons without due cause.224 There
are various reports that these units threatened and/or
assaulted persons who engaged in pro-Ukrainian activities or were known to be critical of Crimea’s annexation. For instance, on June 2, 2014, Vladlen Melnikov
was detained and beaten by such units because he had
sung a song critical of Russian President Putin in public.225 Often these units also try to prevent journalists and
cameramen from doing their work. In such cases media
workers are often beaten and their equipment is seized.226
Unlawful actions by these self-defense units, including
murder and torture are generally not investigated by the
“regular” police or by any other Crimean authorities.227
3) Mandatory re-registration for Crimean media under
Russian law
Since the Russian government treats Crimea as a part of
the Russian Federation, it has introduced Russian federal
31
law to Crimea and forces all natural and legal persons to
comply with such law. This also affects the media sector
that now has to obey the restrictive Russian media laws.
The Russian government and the Crimean authorities
forced all Crimean media outlets to re-register under
Russian media law by January 2015.228 This measure is
widely seen as an attempt to suppress all critical media
in Crimea (especially pro-Ukrainian media or media in
Ukrainian or Crimean Tatar language). There are numerous reports that journalists and media workers have
been threatened with legal or administrative actions (e.g.
denial of re-registration) unless they refrained from the
criticism of Crimea’s annexation.229 Media outlets that
want to continue their work in Crimea under Russian
law are, therefore, forced to self-censor. This means, for
example, that they have to avoid expressions like “annexation” or “occupation of Crimea.”230
4) The law against separatism
Since the annexation of Crimea by the Russian Federation is seen as a violation of international law by most
countries in the world,231 the Russian and Crimean authorities try to silence the expression of free speech in
this regard. On July 22, 2014, the President of the Russian
Federation signed into law an amendment of Article 2801 of the Criminal Code that outlaws any “public calls
for separatism.” Infringement of this provision can be
punished with imprisonment of up to four years.232 It
is to be expected that this provision will be used ‒ like
the Russian counterterrorism law ‒ to persecute proUkrainian activists. Any person that criticizes Crimea’s
annexation or expresses loyalty to Ukraine in any form
could be indicted under the said provision. In fact, even
the display of a Ukrainian flag could be seen as “public
call for separatism.”
Freedom of Speech under International Law
Freedom of speech is protected by various international
legal instruments. Article 19 of the UDHR 233 states that
everyone has the right to freedom of opinion and expression. This right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through any media and regardless of
frontiers either orally, in writing, in print, in the form of
art, or through any other media of one’s choice.
Article 19 of the ICCPR 234 guarantees the right to hold
opinions without interference and protects the right to freedom of expression that includes freedom to seek, receive
and impart information and ideas of all kinds, regardless
of frontiers. However, Article 19 subsection 3 of the ICCPR
states that the exercise of these rights carries with it special
duties and responsibilities. It may therefore be subject to
32
certain restrictions as long as they are provided by law and
are necessary for a) the respect of the rights or reputations
of others, or b) the protection of national security or of
public order, or of public health or morals.
Article 10 of the ECHR provides that everyone has the
right to freedom of expression. This right includes the
freedom to hold opinions and to receive and impart
information and ideas without interference by public
authority and regardless of borders. However, Article 10
subsection 2 of the ECHR states that the exercise of these
freedoms may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and
are necessary in a democratic society. Restrictions of
freedom of speech are allowed under the ECHR for the
following reasons:
• national security;
• territorial integrity or public safety;
• prevention of disorder or crime;
• protection of health or morals;
• protection of the reputation or rights of others;
• preventing the disclosure of information received in
confidence;
• maintaining the authority and impartiality of the judiciary.
The guarantees under this article are interpreted by the
ECHR in a very broad way. Essentially, Article 10 not
only applies «to information or ideas that are favorably
received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or
disturb.”235
Freedom of speech is also covered by Article 13 of the
CROC.236 Here the same restrictions apply as in the case
of the ICCPR.
The legal instruments on the freedom of speech as outlined above continue to be applicable even if a territory is
occupied by another country.237 Apart from this, it is to
be noted that all of these legal instruments are applicable
to both Ukraine and the Russian Federation. The legal
status of Crimea should, therefore, have no effect at all
on the exercise of free speech as guaranteed under the
mentioned instruments.
Freedom of Speech under the Constitutions of Ukraine
and of the Autonomous Republic of Crimea
In Ukraine, freedom of speech is protected pursuant to
Article 34 of the country›s Constitution.238 This provision
states that everyone is guaranteed the right to freedom
of thought and speech, and to the free expression of his
or her views and beliefs. It also states that everyone has
the right to freely collect, store, use, and disseminate information by oral, written, or other means of his or her
choice. The exercise of these rights may be restricted,
but only under such circumstances as provided in Arti-
cle 10 subsection 2 of the ECHR. Freedom of speech can
also be restricted under conditions of martial law or a
state of emergency as set out in Article 64. Although the
Ukrainian Constitution has been amended several times
since its adoption in 1996, such amendments did not alter
Article 34 on freedom of speech.
The Constitution of the Autonomous Republic of
Crimea,239 adopted in 1998, does not contain a catalogue
of fundamental rights comparable to the Ukrainian Constitution. However, its Article 9 subsection 1 holds that
human and civil rights and freedoms in the Autonomous
Republic of Crimea should be established and guaranteed
by the Constitution of Ukraine and Ukrainian laws,
and, pursuant to the same, by the Constitution of the
Autonomous Republic of Crimea. As a result, all human
rights guarantees under the Ukrainian Constitution are
adopted by the Constitution of the Autonomous Republic
of Crimea.
Despite these formal constitutional guarantees, freedom
of speech in Ukraine is currently challenged by a new
law that allows the government to shut down media and
to block websites on national security grounds without
a court’s permission.240
Freedom of Speech under the Constitutions of the
Russian Federation and of the Republic of Crimea241
Article 29 of the Russian Constitution242 protects freedom of speech, freedom of the mass media, and prohibits
censorship. However, Article 29 subsection 2 prohibits
propaganda or agitation, arousing social, racial, national
or religious hatred and hostility. Propaganda of social,
racial, national, religious or linguistic supremacy is also
prohibited. Pursuant to Article 56 human rights and
freedoms (including freedom of speech) can be restricted
in the conditions of a state of emergency.
Freedom of speech is also guaranteed by Article 22 of the
Constitution of the «Republic of Crimea» (as a federal
subject of the Russian Federation). The content of this
provision corresponds with Article 29 of the Russian
Constitution as cited above. Pursuant to Article 48
subsection 2 of the Constitution of the «Republic of
Crimea,” freedom of speech may be limited under certain
circumstances (e.g. to protect the constitutional order or
the legitimate interests of other persons).
Despite the formal protection of freedom of speech
pursuant to Article 29 of the Russian Constitution, the
Russian government has enacted various laws that effectively restrict this fundamental right (especially concerning the freedom of the press). As reported above,
the Russian and Crimean authorities regularly use the
counterterrorism law as well as the anti-separatism law to
obstruct free speech. In addition, there is a series of other
legal measures restricting free speech in various ways.243
9. Freedom of assembly
Freedom of assembly is a central civil and political
right that is necessary to form and maintain a free
and democratic society. It is protected by various international legal instruments and is closely connected
with other fundamental rights like freedom of speech,
freedom of thoughts and freedom of association. In
fact, assembly – in any form whatsoever – is a very
important way to exercise civil and political rights.
Since holding assemblies – especially in the form of
mass protests – can cause enormous political pressure
on governments, this human right is generally suppressed in authoritarian regimes. Freedom of assembly
guarantees the right of individuals to come together
and collectively express a certain aim or issue in public
space. The scope of this right does not only include the
mere ability to take part in such events, but also the
right to organize and prepare them. Assemblies must
be also given the possibility to be heard and noticed
by the general public. Therefore, it would be a violation of this human right if authorities would permit
assemblies generally only in remote or less inhabited
locations, but not within cities.
In every jurisdiction there are certain limitations of
freedom of assembly necessary for the functioning of
a democratic society. Such limitations are permitted
in accordance with international law as long as they
are proportionate and not used to oppress the nature
of free assembly. In general, freedom of assembly only
protects peaceful gatherings of unarmed persons.
Furthermore, limitations of this right are, inter alia,
admissible if they are necessary in the interests of national security or public safety or for the prevention of
disorder or crime. There may also be administrative
regulations, i.e. the obligation to notify authorities
some time in advance before an assembly is held. Such
limitations must not oppress the nature of the right of
free assembly in any way. Still, authoritarian regimes
often use such administrative procedures to harass the
organizers of assemblies or to ban them due to alleged
administrative violations.
Against this backdrop, the human right to freedom of
assembly guarantees all persons in Crimea the right to
organize and hold peaceful gatherings to express a certain aim or issue in public space (i.e. to demand the return of Crimea to Ukraine or to celebrate the Ukrainian
national holiday).
Freedom of assembly in Crimea as protected by various
international instruments is not altered by the fact that
this region is currently occupied by the Russian Federation. An occupying power generally has to respect the
laws in force in the affected country. 244 Furthermore,
33
both Ukraine and the Russian Federation are signatories
to human rights treaties that are relevant for the protection of freedom of assembly.
Current situation in Crimea
freedom of assembly is de facto not guaranteed in Crimea
(especially since its annexation by the Russian Federation). Gatherings and mass meetings by pro-Russian
groups are not restricted by the Crimean authorities. The
same is not true for assemblies held by pro-Ukrainian or
Crimean Tatar organizations. On September 23, 2014,
the Crimean authorities issued a statement that “all actions aimed at the non-recognition of Crimea as a part
of the Russian Federation will be persecuted.”245 Against
this backdrop, any assembly demanding the return of
Crimea to Ukraine or expressing loyalty to Ukraine is
effectively outlawed.
There are numerous reports about incidents in which
the Crimean authorities have violated the human right
of assembly. For instance, each year in May, the Crimean
Tatars organize large gatherings to commemorate the
mass deportation of Crimean Tatars by Joseph Stalin in
1944. Although May 2014 marked the 70th anniversary
of the said deportation, the Crimean authorities banned
all mass assemblies in this regard. The authorities argued
that this was necessary to avoid “provocations” and not
to “disrupt the summer holiday season”.246
The freedom of assembly for the Crimean Tatars was
also restricted in other cases. On May 3, 2014, Russian
authorities prohibited the leader of the Crimean Tatars,
Mustafa Dzhemilev to re-enter Crimea (this ban continues). This act caused widespread protests among the
Crimean Tatars. It is reported that several participants
in such protests were fined for alleged public disorder.247
It is also reported that assemblies to celebrate the Crimean Tatar Flag Day could only be held in areas mainly
populated by Crimean Tatars and not – as demanded by
the organizers – in the city center of Crimea’s capital.248
In one example, “hot weather” has been used as a reason by the authorities to prohibit public gatherings by
Crimean Tatars.249
Crimean and Russian authorities also tried to prevent
mass gatherings by Ukrainians in connection with the
national holiday of Ukraine’s Independence Day on
August 24, 2014. Police and the so-called “self-defense
units” were stationed in large numbers near and around
locations of possible pro-Ukrainian gatherings on August 24. They intimidated persons that wanted to attend
and prevented media workers from taking pictures or
film. Consequently, the Crimean authorities effectively
restricted the freedom of assembly for the celebration of
the Ukrainian national holiday in Crimea.250
34
International, national and regional guarantees
of this right relating to Crimea
Freedom of Assembly under International Law
Freedom of assembly is protected by various international legal instruments. Article 20 of the UDHR 251 states that
everyone has the right to freedom of peaceful assembly
and association.
Article 21 of the ICCPR 252 guarantees the right of peaceful assembly. Restrictions of this right are admissible as
long as they are in conformity with the law and necessary in a democratic society. In addition, such limitations
have to be connected to one of the following reasons:
• national security or public safety;
• public order;
• protection of public health or morals;
• protection of the rights and freedoms of others.
Article 11 of the ECHR 253 holds that everyone has the
right to freedom of peaceful assembly and to freedom
of association with others. Article 11 subsection 2 of the
ECHR states that the exercise of this freedom may be
restricted if such measures are prescribed by law and
are necessary in a democratic society. Furthermore,
restrictions of freedom of assembly have to be connected
to one of the following reasons:
• national security or public safety;
• prevention of disorder or crime;
• protection of health or morals;
• protection of the rights and freedoms of others.
Finally, Article 11 subsection 2 of the ECHR allows the
imposition of lawful restrictions on the exercise of the
right of assembly by members of the armed forces, of the
police or of the administration of the state.
Freedom of assembly is also covered by Article 15 of the
CROC.254 Here the same restrictions apply as in the case
of the ICCPR.
The legal instruments on the freedom of assembly outlined above continue to be applicable even if a certain
territory is occupied by another country.255 Furthermore,
it is to be noted that all of these legal instruments are applicable to both Ukraine and the Russian Federation. The
legal status of Crimea should, therefore, have no effect at
all on the exercise of freedom of assembly as guaranteed
under the mentioned instruments.
Freedom of Assembly under the Constitutions of
Ukraine and of the Autonomous Republic of Crimea
Freedom of assembly is protected under Article 39 of the
Ukrainian Constitution.256 This provision states that citizens have the right to assemble peacefully without arms
and to hold meetings, rallies, processions, and demon-
strations, upon notifying in advance the bodies of executive power or bodies of local self-government. The exercise of these rights may be restricted, but only under such
circumstances as also listed in Article 11 subsection 2 of
the ECHR. In addition, however, freedom of assembly
can also be restricted under conditions of martial law or
a state of emergency as set out in Article 64. Although
the Ukrainian Constitution has been amended several
times since its adoption in 1996, such amendments did
not alter Article 39 on freedom of assembly.
by the Constitution of Ukraine and Ukrainian laws,
and, pursuant to the same, by the Constitution of the
Autonomous Republic of Crimea. As a result, all human
of Crimea.
Freedom of Assembly under the Constitutions of the
Russian Federation and of the Republic of Crimea
Article 31 of the Russian Constitution258 states that citizens of the Russian Federation have the right to assemble
peacefully without weapons, hold rallies, mass meetings
and demonstrations, marches and pickets. This article
does not mention any restrictions of this right. Pursuant to Article 56, however, human rights and freedoms
(including freedom of assembly) can be restricted in the
conditions of a state of emergency.
Freedom of assembly is also guaranteed by Article 24
federal subject of the Russian Federation). The content of
this provision corresponds with Article 31 of the Russian
Constitution as outlined above. Pursuant to Article 48
subsection 2 freedom of assembly may be limited under
certain circumstances (e.g. to protect the constitutional
order or the security of the state). Since the annexation
by the Russian Federation the respective legal framework
is also applied to Crimea.
Despite the formal protection of the freedom of assembly
by the Constitutions of the Russian Federation and the
“Republic of Crimea”, the Russian and Crimean authorities enacted various laws that effectively restrict this fundamental right. For instance, organizers of assemblies
have to meet a wide range of formal requirements. A
violation of such administrative law is punishable by substantial fines (up to 2-3 yearly salaries). Children under
14 years of age are banned from attending public events.
On August 8, 2014, the Crimean authorities enacted a law
that requires organizers to obtain a written permission
for public events no later than 10 days in advance.259 Such
administrative measures that give the authorities large or
total discretionary power effectively restrict the freedom
of assembly in Crimea.
10. Right to truth
The right to truth is a rather new concept in the international human rights law. There is no treaty provision
that explicitly sets out the right to truth or the right to
true information, except Article 24 (2) of the CED.260 Unfortunately, neither Ukraine nor the Russian Federation
has ratified the CED.
On October 12, 2009, the HRC adopted a Resolution on
the right to truth, calling upon states to take a number
of steps to facilitate efforts by victims or their next of kin
to determine the truth about gross violations of human
rights. This document is the most recent in a number of
international instruments related to the individual’s right
to know the truth about gross human rights violations.
In its resolution, the HRC emphasized that “the public
and individuals are entitled to have access, to the fullest
extent practicable, to information regarding the actions
and decision-making processes of their Government.”261
This right is important, because without true information about human rights violations, it is almost impossible to seek effective redress. Access to true information
is especially important in cases of armed conflict and
military occupation, when human rights violations are
more likely and more serious, e.g. intentional killings,
tortures, forced disappearances, illegal detentions, etc.
There are scholars, who have identified this right as “the
newest human rights construction,” denoting a paradigmatic shift from conventional criminal justice models
toward victim-oriented remedies for both survivors and
the whole of society.262
The concept of the right to truth was born out of the
anguish and indignation caused by systematic patterns
of gross human rights violations and the subsequent impunity enjoyed by perpetrators.263 It has its origin in the
law on enforced disappearances and the 1977 Additional
Protocol I to Geneva Conventions.264 It is also derived
from Article 1 (general duty to respect) of the ECHR
with respect to the right to life, freedom from torture
and ill-treatment, right to liberty and security, and right
to an effective remedy.265
Apart from its duty to respect the right to truth and refrain from any action that may violate or interfere with
the realization of this right, the state also has positive obligations to secure this right. The right to truth imposes
on the states following obligations:
1.to establish the cause and circumstances of the violation;
2.to collect and secure evidence;
35
3.to establish the fate and whereabouts of the victim(s);
4.to inform the victim(s) and the public about the in-
quiry results;
5.to locate the body and to dispose of the remains;
6.to identify and punish the perpetrator and to inform
the victim(s) about the process.266
With respect to the state obligations noted above, the victims (including their relatives) have the right to demand
and receive information about the ongoing investigation. When it is possible, the victims should be allowed
to participate in the investigation and have access to the
case materials. Furthermore, the state should assist the
victims in collecting or preserving the evidence, e.g. by
creating witness protection program.
There are special rules for the prohibition on amnesty for
war crimes and gross human rights violations in cases
of crimes committed in violation of international law.
There is no international treaty that explicitly prohibits
amnesty laws. However, a substantial body of international law sets limits on their permissible scope. Under
international law, amnesties are impermissible if they:
(a) prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes
against humanity or gross violations of human
rights;
(b) interfere with victims’ right to an effective remedy;
or
(c) restrict victims’ or societies’ right to know the
truth about violations of human rights and humanitarian law. 267
The right to truth is not limited to the victims of human
rights violations. The right to truth has a collective aspect,
namely collective interest in access to truthful information, which is an essential pre-requisite of any democracy.
The Inter-American Court of Human Rights in several
instances has ordered states to publicly acknowledge their
violations of international commitments and to publish
the court’s findings.268 This is a very good example of a
guarantee for collective rights. Society’s interest in truth
is even of greater importance, since it is a prerequisite of
effective social control and state governing according to
internationally recognized standards of democracy.
The right to truth should be distinguished from freedom
of information, which is an integral part of the fundamental right of freedom of expression, as recognized by
Resolution 59 of the U.N. General Assembly adopted in
1946,269 as well as by Article 19 of the UDHR.
Possible restrictions
The right to truth is de facto the right to truthful information. It may be restricted due to national security or protection of morality and privacy reasons. Another example of the restriction of the right to truth can be labeled
36
as “integrity of the ongoing investigation.” According to
Article 13 (4) of the 1992 Declaration on the Protection of
All Persons from Enforced Disappearance, “the findings
of an investigation of enforced disappearance shall be
made available upon request to all interested persons,
unless doing so would jeopardize an ongoing criminal
investigation.” However, this restriction should be interpreted narrowly. The relatives of the victims should
be closely associated with the investigation in cases of
enforced disappearance.270 This restriction does not apply
when the investigation, which could be jeopardized, is
over. There is an exception from the restriction of the
right to truth based on necessity of the investigation. The
right of the relatives to know the truth of the fate and
whereabouts of the disappeared persons is an absolute
right, not subject to any limitation or derogation. No
legitimate aim, or exceptional circumstances, may be
invoked by the State to restrict this right.271
In relation to the occupied territories, restriction of the
right to truth should not be broader. However, due to
special circumstances this right may be inevitably limited. On the occupied territory, the right to truth must be
protected by both the occupied and the occupying state.
The ability of the occupied state to enforce the right to
truth is limited. This does not, however, provide an exemption from responsibility. The occupied state is still
under obligation to secure the right to truth for people
under its jurisdiction by all legal means. Primarily, it
must create effective mechanisms for collecting information about the committed violations. People whose
rights have been violated should be able to report such
violations and receive instructions on how to proceed.
Situation in Crimea
Currently, there are no reports about direct violations
of the right to truth in Crimea. However, those violations may be implied from the reports about the violations of other fundamental human rights and freedoms,
especially the right to life, freedom from torture and
ill-treatment, right to liberty and security, and right to
an effective remedy.
Human Rights Watch has reported cases of missing
people. Some of them were released, some found dead,
and the whereabouts of others remain unknown.272 In
its December Report, the Office of the United Nations
High Commissioner for Human Rights (OHCHR) reported that investigations into nine documented cases of
enforced disappearances are still pending.273 Moreover,
there is no information about progress in any of the investigations, although, people (eight Crimea Tatars and one
ethnic Ukrainian) disappeared as early as March 2014.274
Since then, three of them have been found dead, and the
whereabouts of the rest remain unknown.275 The so-called
“prime minister” of Crimea, Sergey Aksionov, called for
the creation of a “contact group,” to investigate the cases
of enforced disappearance as well as other incidents involving Crimean Tatars. As was noted by OHCHR, “the
establishment of the contact group, coupled with the direct involvement of the Russian Federation investigative
organs and the presence of relatives of the disappeared,
are important developments.”276 Nevertheless, it should
be noted that the “contact group” was created in October,
following pressure from the victims, while most of the
known abductions took place in March-May.
The de facto authorities continue to support the so-called
self-defense units, which were allegedly implicated in enforced disappearances, beatings and torture of dissenters.
The authorities not only have failed to restrain the units or
investigate the human rights abuses committed by them,
but have legalized them.277 Furthermore, in July the de facto
prime minister of Crimea introduced a draft law to the
parliament of Crimea proposing to grant amnesty to all
members of the self-defense units in Crimea for the period
between February and April 2014. A similar law is pending
in the State Duma of the Russian Federation, which proposes an amnesty for members of the self-defense units for
all crimes committed between February 2014 and January
2015 with the exception of those “motivated by personal
gain.”278 Fortunately, the amnesty bill was not passed by
the Crimean parliament, but the same bill is still under
review in the Duma. Granting amnesty to the so-called
self-defense units of Crimea would constitute a breach of
international law in general and the right to truth in particular. By submitting the amnesty bill to the State Duma
of the Russian Federation, the Crimean de facto authorities
have already violated their negative obligation to respect
the victims’ right to truth. In addition to the above mentioned, in October 2014, Sergey Aksionov expressed gratitude to 64 members of peoples’ militia “for the scrupulous
performance of the duty to protect public order and public
safety on the territory of the Republic of Crimea.”279
Another example of the violation of the right to truth
is the ban on public comments about ongoing prosecutions of civil society activists (such as Mr. Sentsov). The
OHCHR reports that on October 13, 2014, the Moscow
City Court upheld the ban on Mr Sentsov’s lawyer’s ability to comment on his criminal case. Mr. Sentsov’s defense
rightfully considers these actions to be a violation of his
rights.280 Actions like this violate not only his individual
right, but also the right of society to know the truth about
human rights violations.
Human Rights Watch and UN Human Rights Monitoring Mission in Ukraine (HRMMU) have reported a
number of cases of media prosecution and censorship.281
Crimean TV, radio and newspapers are facing obstacles in their operation due to restrictive regulations on
re-registering under Russian law and obtaining special
licenses. As a result, Crimeans have access mainly to the
Russian media. The Crimeans’ right to truth is significantly impaired when there is no freedom of speech and
the operation of independent mass media is restricted or
obstructed. This is particularly critical under the current
conditions in Crimea, where an informational war exists
between Ukraine and the Russian Federation.
Currently, Crimea is a territory under dual jurisdiction:
Ukrainian and Russian. The Russian Federation as an
occupying power is obliged to respect and protect human
rights of everyone under its jurisdiction. Ukraine has the
same obligation, as long as Crimea is officially recognized
as a part of the Ukrainian sovereign state. Unfortunately, The Russian Federation continuously violates its obligations, and the war in the East of Ukraine prevents
Ukraine from devoting enough attention to the violations
of the human rights in Crimea, particularly the right to
truth. While the Ukrainian government has declared that
the rights and freedoms of Crimean citizens are guaranteed and protected by the Ukrainian state, there is no
practical means for the Crimeans to report human rights
violations to the Ukrainian law enforcement.
There is an important role for the international community in ensuring accountability for the most serious human rights violations. It is clear that neither Ukraine nor
Russia is capable of rendering justice and securing the
right to truth under conditions of an ongoing armed conflict. In order to guarantee access to remedy for human
rights violations and to avoid impunity of those who are
responsible, it is recommended that the General Assembly consider creating a Special Court with jurisdiction
over all serious human rights violations committed in
Crimea during its occupation by the Russian Federation.
The Special Court for Lebanon may serve as an example.
This court should have the power to order to:
1.(i) conduct full and meaningful investigations and
prosecute or punish those responsible for the crimes;
2.(ii) compensate victims;
3.(iii) take measures to ensure there is no re-occurrence
of the violation;
4.(iv) invalidate existing domestic laws and require
changes to the national legislation, etc.
Unfortunately, neither the existing ICJ nor the ICC is
capable of fulfilling this role. With respect to human
right violations in Crimea, there is a need for an international judicial body with a much broader substantial
jurisdiction and less dependence on international politics, i.e. institutionally more independent. This special
court should apply domestic laws, but be international
in procedure and composition.
11. Right to participate in state governance
(including voting rights)
Citizens are entitled to be involved in their own government. Usually, such involvement entails the participation
of eligible adults in the electoral process, which means
the right to vote and be voted for. Yet it also entails the
37
freedom of citizens to work in and be served by the public
service on generally equal terms, such that no eligible citizen would be denied the benefit of public service on the
basis of such consideration as the citizen’s political opinion, race, sex, or other such characteristics. It would be a
denial of the right to participate in state governance if a
citizen were prevented from enjoying these entitlements.
This right to participation in governance is a hallmark
of civilized and democratic systems of government recognized in international law. Article 21 of the UDHR,
for instance, provides that “[e]veryone has the right to
take part in the government of his country, directly or
through chosen representatives.” A similar provision appears in Article 25 of the International Covenant on Civil
and Political Rights (“ICCPR”): “[e]very citizen shall have
the right and opportunity” without unreasonable restrictions to: (i) directly or through freely chosen representatives, take part in the conduct of public affairs; (ii) vote
and be voted for in genuine and periodic, free and fair
elections; and (iii) have access on generally equal terms to
public service in his country. National laws of both Russia and Ukraine also support the right to participation
in governance for their respective citizens. Article 32 of
the Russian Constitution closely follows the provisions
of the ICCPR in guaranteeing to citizens the right to participation in government.282 Likewise, Article 38 of the
Ukrainian Constitution guarantees to citizens the “right
to take part in the management of state affairs” and “an
even right for access to government service.”
The right to participation in governance is, however, not an
absolute right. International law permits the imposition of
restrictions on the right, albeit only in clearly defined circumstances. Under the ICCPR, a State may derogate from
its citizens’ right to participate in government “in times
of public emergency that threatens the life of the nation
and the existence of which is publicly proclaimed.”283 Such
derogations from the right must be “strictly required by
the exigencies of the situation,” be consistent “with other
obligations under the international law,” and not “involve
discrimination solely on the grounds of race, colo[r], sex,
language, religion or social origin.”284
Although the right to participation in state governance
is not included in the Human Rights Convention, the
ECHR interpretation of the derogation provision in that
instrument (similarly worded as the ICCPR) offers guidance on the seriousness of occasions that could justify
derogations from legally guaranteed human rights. According to the ECHR, “public emergency” means “an
exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to
the organized life of the community of which the state
is composed.”285 The European Commission has also had
occasion to determine that “street demonstrations and
labor strikes did not evidence an imminent takeover by
insurgents against the ruling military junta and there38
fore no public emergency existed.”286 In effect, even in
occupied territories, derogation from the citizens’ right
to participation in governance is only lawful where the
above strict contours of public emergency and the attached conditions set by international law have been
satisfied. It is within this context, therefore, that the
availability (or lack thereof) of the right to participation
in governance of citizens of Crimea should be assessed.
Following the Russian occupation of Crimea, participation in governance appears to have become significantly
eroded for those citizens who oppose the occupation. As
reported by the United Nations Human Rights Monitoring Mission in Ukraine (“HRMMU”) in June 2014,
“Crimean residents faced difficulties in exercising their
civil and political rights. A very small number participated in the [Ukrainian] Presidential elections of May
25, 2014.”287 Apparently, the few who managed to vote
were summoned and warned of the unacceptability
of “extremist” behavior by the Police, and while their
“cars were crossing the administrative border, representatives of the Crimean “self-defense” units reportedly
wrote down license plates, passport numbers and driver
license details.”288 In an earlier Report, the HRMMU also
indicated that it was “verifying reports” that Crimean Tatars working in law enforcement or occupying important
public positions were being pressured to resign.289 Those
reports seemed to have been confirmed as the subsequent
and independent Report of the Commissioner for Human Rights of the Council of Europe indicated that “[f]
or certain groups of individuals – such as civil servants –
the decision not to accept Russian citizenship meant the
loss of their current employment.”290 This latter Report
further mentioned “reports suggesting that public sector
employees (e.g. teaching staff in universities and other
educational institutions) were also “advised” to renounce
their Ukrainian citizenship.”291
As the foregoing cases suggest, the participation of a section of Crimean citizens in political activities and public
service is apparently being constrained on the basis of
their retention of the Ukrainian nationality and allegiance. This is a discriminatory violation of the affected
citizens’ right to participation in governance, contrary
to the guarantees provided by the various international
and national law instruments discussed earlier. These
violations are especially unwarranted given that Crimea
remains recognized as a Ukrainian territory under international law. The Russia-backed authorities in Crimea
have not shown that the conditions under which a State
is permitted to derogate from the rights provided under
the ICCPR (i.e. public emergency that threatens the life
of the nation, non-discriminatory derogation etc.) exist. It is therefore incumbent on Russia as an occupying
power to uphold its international obligations under the
UDHR, ICCPR and its own Constitution by respecting
the right of Crimean citizens to participate in their own
governance irrespective of their political allegiance.
12. The right to equality before the law and
freedom from discrimination
The philosophy that every person is equal before the law
and that the law should be applied to all without fear or
favor is the bedrock of legitimate and responsible governments. This philosophy is reflected in the right to
freedom from discrimination guaranteed under several
legal instruments. No person should be denied benefits
or entitlements that others of his kind enjoy merely because he is of a different race, sex, color, religion and/or
political opinion. Conversely, no person who has violated
the rights of another should be shielded from appropriate legal sanction merely because the violator’s political
views favor the government.
In an occupied territory, the citizens of the territory
who are opposed to the occupation are entitled to all
human rights applicable to the territory to the same
full extent as other citizens of the territory who support the occupation. They, like their counterparts with
contrary political views, have the right to life, to liberty and security of their persons, not to be tortured
or subjected to other forms of inhuman treatment,
to own property etc. Where, therefore, an occupying
power selectively enforces human rights, such that
those in support of its occupation are protected while
those opposed to it are deprived, it in effect violates
the latter group’s right to freedom from discrimination. Conversely, where the occupying power either
approves or protects its supporters’ violations of the
human rights of those citizens opposed to its occupation, its conduct amounts to a denial of the latter
citizens’ right to equality before the law.
The UDHR, ICCPR and the Human Rights Convention,
among other international law instruments, guarantee
the availability of human rights in the territory of their
State-parties without discrimination.292 The Russian and
Ukrainian Constitutions in turn guarantee non-discriminatory protection of their respective citizens’ human
rights.293
Notwithstanding the legal guarantees in the foregoing
international and national law instruments, certain
classes of Crimean citizens have apparently been subjected to varying forms of discrimination. These range
from restrictions on ingress to and egress from Crimea
and intrusion into personal privacies, to expropriation
of business and assets. Violations of the right to freedom
from discrimination in Crimea appear to have been targeted at both human and economic rights.
In 2014, Human Rights Watch reported that it had been
able to document (at least) three cases of “Ukrainian
border guards deliberately searching people for Russian
passports and refusing permission to Ukrainian citizens
who have received Russian passports to enter mainland
Ukraine from Crimea.”294 This measure was taken in
spite of the specific provision of Ukrainian law on the
occupied territory of Crimea which stipulates that “[c]
itizens of Ukraine have rights to free and unrestricted entry [to and from Crimea] via entry-exit control
points upon presenting documents which confirm their
identity and Ukrainian citizenship.”295 The Report of
the Commissioner for Human Rights of the Council
of Europe contains reports of media houses in Crimea
being harassed and ultimately pressured to close down
or relocate by Russian-backed authorities for disseminating content “which indirectly carries with it the
threat of extremist activity.”296 In the case of Avdet, a
Crimean newspaper, equipment was seized, its office
closed and sealed, and its bank accounts frozen.297 The
sole Crimean television station, ATR, received a threat
of imminent closure for resisting Russian government’s
censorship.298 In addition, there are reports of seizure of
assets in Crimea by Russian authorities, including banks
owned by Ukrainians.299
Through legislative action, the Russian government has
further entrenched discrimination against citizens of
Crimea who chose not to renounce their Ukrainian citizenship by, among other things, restricting occupation
of government and municipal jobs to citizens who hold
Russian passports.300 Moreover, in cases where persons
acting with the apparent authority of the government,
such as the “self-defense” forces, have violated the human
rights of Crimean citizens perceived as holding political
views that oppose the occupation, the Police and other relevant law enforcement apparatuses have generally
been lax in their investigations.
All the instances cited above are manifestations of the
denial of rights to freedom from discrimination to a
particular group of Crimean citizens, typically on the
grounds of contrary political views or allegiances. Both
Russia and Ukraine are implicated in these violations.
Similarly, the absence of serious investigative actions into
allegations of human rights violations by the “self-defense” forces in Crimea suggests that the right to equality
before the law of those Crimean citizens whose views are
contrary to those of Russia has been put in abeyance.
3. Social, economic and cultural rights
1. Right to own things (right to property)
The right to property, including an adequate standard
of living, is universally recognized. States party to one
of the foremost human rights conventions – the International Covenant on Economic, Social and Cultural
Rights – are obliged to recognize the right of everyone
to an adequate standard of living and to take appropriate
steps to ensure the realization of this right.301 The pro39
tocol to the European Convention on Human Rights for
Protection of Human Rights and Fundamental Freedoms
emphasizes that every natural or legal person is entitled
to peaceful enjoyment of his or her possessions.302 The
Ukrainian constitution guarantees the right to property
to its people.303 Following the invalid Referendum and
occupation of Crimea by the Russian Federation,304 human rights organizations including the HRMMU reported innumerable instances of property rights violations in
the Occupied Territory. These reports also indicate the
failure by the Ukrainian government to safeguard the
constitutional rights guaranteed to the Crimean people.
The HRMMU reports that in March 2014 the Ukrainian
Government blocked access to the State Register of Real
Estate and Land Plots due to which public notaries have
stopped the documentation of property acquisition and
sales in Crimea. Registration of ownership rights has
been hampered in Crimea.
As of June 2, 2014, the National Bank of Ukraine stopped
its operations in Crimea, and the compensation payments are to be made by the nonprofit organization “Depositor Protection Fund.” Effective payment of money
to the depositors has not been observed yet.305 A recent
newspaper article by New York Times suggests that, as
of January 2015, depositors face procedural hurdles in
receiving money to which they are rightfully entitled.306
The right to an adequate standard of living of Crimean
residents has been severely curtailed in the Occupied Territory. Reportedly, the Ukrainian State Water Resources
authority shut off the water supplies to Crimea through
the North Crimean Canal, which allegedly accounts for
85% of all freshwater supplies, used mostly for irrigation.307 The impact on Crimea’s agriculture, farmers and
food supply of the lack of adequate freshwater resources
is not fully known.
Due to the expropriation and privatization measures taken in Crimea, business enterprises have been seriously
affected. Some business entities have been arbitrarily deprived of their right to own and control their property.
For example, a Ukrainian gas company “Sevastopolgas”
was allegedly forced to either abandon its equipment or
negotiate its sale.308 The “people’s militia,” appointed by
the State Council of Crimea as a “public organization” after the Referendum, has been reported to have committed
human rights violations. Reportedly, on August 24, “people’s militia” entered the premises of “Zalyv” shipbuilding
yard and prevented the management from entering their
workplace. In another instance, “people’s militia” entered
the premises of a Ukrainian gas company “Krymgas” and
allegedly advised its employees to either quit or apply for
transfers to a newly created gas company.309
The State Council of Crimea passed a decree on September 3, 2014, nationalizing 82 entities, many of which were
40
mostly private banks owned by Mr. Ihor Kolomoyskyi
and 28 Crimean markets owned by others.310 According
to a HRMMU report, between September 18 and October
9, 2014, the State Council of Crimea nationalized over 20
facilities. On September 25, 2014, the public company
“Ukrtelecom JSC” was informed that unknown persons
had seized its premises and equipment.311
To quote the HRMMU report, “using various pretexts,
the self-proclaimed local authorities in Crimea and Sevastopol continued to conduct actions amounting to forcible
seizure of private property from individuals or companies
maintaining links to Ukraine.”312 The “people’s militia”
has been accused of conducting raids and expelling business enterprises from their property. The State Council of Crimea has been reported to have given a “public
organization” status to “people’s militia,” including the
provision that its members would be paid salaries out
of the public money.313 The report also suggests that no
compensation was paid to the owners when they were
deprived of their personal property due to expropriation
or nationalization.314
The Constitution of Ukraine provides that the forcible taking of private property is allowed only as an
exception, for reasons of public necessity, following a
procedure set by law, and only if complete compensation is paid. The forcible taking of property, even with
complete compensation, is allowed only for military or
extraordinary reasons of state. 315 Thus, the people of
Ukraine have a constitutional guarantee that they will
be provided with compensation when their personal
property is taken by the state. The Law on the Occupied
Territory invalidates the actions taken by the local state
bodies that are not within the limits of the Constitution. The legal status of the “people’s militia” and the
expropriations without due cause and compensation
conducted in the Occupied Territory remain questionable under the Constitution, the laws of Ukraine, and
the principles of international law.
The Law on the Occupied Territory reiterates that the
permanent sovereignty over the natural resources of
Ukraine rest with its people and cannot be transferred
to other States or persons in a manner different from
what is envisaged under the laws of Ukraine. 316 On
October 23, 2014, the Minister of Justice of Ukraine
reportedly announced that Ukrainian investigatory authorities had initiated criminal cases against judges, law
enforcements officials and Crimean executive service
employees who had violated Ukrainian citizens’ rights
in Crimea and were involved in expropriations.317 The
implementation of the Law on the Occupied Territory
and the progress of the investigations initiated by the
Ukrainian Government are yet to be achieved; the possibility of effective implementation of these measures
under the de facto control of Crimea by the Russian
Federation remains unclear.
2. Right to social security
The Universal Declaration of Human Rights defines this
right in article 22: “Everyone, as a member of society, has the
right to social security and is entitled to realization, through
national effort and international co-operation and in accordance with the organization and resources of each State, of
the economic, social and cultural rights indispensable for
his dignity and the free development of his personality.”318
According to Article 9 of the International Covenant on
Economic, Social and Cultural Rights, “States part to
the present Covenant recognize the right of everyone to
social security, including social insurance.”319
Other international instruments include Article 5(e)(iv)
of the Convention on the Elimination of All Forms of
Racial Discrimination (CERD),320 Article 11(1)(e) of the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),321 and Article 26 of
the Convention on the Rights of the Child (CROC).322
In the Revised European Social Charter, the right to
social security is found in Article 12, which has four
paragraphs.323 The Russian Federation only accepts the
first paragraph, which requires a country to establish or
maintain a system of social security; meanwhile, Ukraine
has not yet accepted this Article.324
The European Committee on Social Rights concluded
in 2013 that the situation in the Russian Federation is
not in conformity with Article 12§1 of the Charter on
the ground that the minimum level of unemployment
benefit is manifestly inadequate. 325
Ukraine has challenges in implementing this human
right as well. A report by the International Labor Organization about the rights of Ukrainian migrant workers states: “Ukraine also faces major challenges in the
implementation of social security agreements. Some
agreements are not accompanied with the administrative arrangements necessary for their implementation.
Although the agreements specify which institutions are
competent to implement the agreements, the institutions
lack the necessary organizational structure and human
resources to do so. For example, the Pension Fund of
Ukraine has only five staff members in the international
relations department to process the 600 inquiries it receives from abroad per week.” 326
While the implementation of social security rights in the
region has been challenging, the situation has worsened
following the illegal annexation of Crimea.
Ukrainian citizens residing in Crimea are entitled to social security benefits guaranteed under Ukrainian law.327
The right to a pension will, however, be lost if a Ukrainian
citizen receives a pension or other social benefits from
the Russian Federation. Pensions in Crimea will be paid
by Ukraine solely from funds collected within it. It is,
however, not clear how the Government will manage and
ensure payments from the pension fund in Crimea.328
Ukrainian citizens that have decided to move to mainland Ukraine also preserve their right to social security
benefits. Such individuals have to register with the appropriate authorities and can restore their personal identification documents if these were lost (the information can
be taken from the State Registry of Voters).329
On December 23, 2014, the Russian government declared
that as of January 1, 2015, the law of the Russian Federation
regarding social security will apply to the territories of the
Crimean Republic and the city of Sevastopol. By that date,
the amounts of compensation and other payments, as well
as monetary guarantees, should be brought into compliance with such social payments and guarantees as contemplated by the legislation of the Russian Federation.330
Russian Federal law also establishes the order and conditions of realization of the rights of citizens (including
foreign nationals and stateless persons) living in the Republic of Crimea and Sevastopol to provide for compulsory social insurance in cases of temporary disability or
maternity, as well as mandatory social insurance against
accidents at work and occupational diseases.331
Source: glavcom.ua
Thus, it seems that Russia is extending its social security
system to the region. The mention of foreign nationals
and stateless persons suggests that it might be extended
to Ukrainians and the ones who have not agreed with
the illegal annexation of Crimea. Nevertheless, the international bodies should monitor and determine if the
implementation of those rights in fact occurs, and if there
is any violation of the related human rights.
3. Right to an adequate standard of living
The Universal Declaration of Human Rights defines this
right in article 25: “Everyone has the right to a standard
of living adequate for the health and well-being of him41
self and of his family, including food, clothing, housing
and medical care and necessary social services, and the
right to security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of livelihood
in circumstances beyond his control. Motherhood and
childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy
the same social protection.”332
Article 11 of the International Covenant on Economic, Social and Cultural Rights goes further in providing a more complete definition of this right. 333 Other
international instruments include Articles 5(e)(iii) and
7 of the Convention on the Elimination of All Forms
of Racial Discrimination (CERD), 334 Article 14(2)(h)
of the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), 335 Articles
24(2)(c) and 27 of the Convention on the Rights of the
Child (CROC),336 and Article 28 of the Convention on the
Rights of Persons with Disabilities (CRPD).337
The UN Committee on Economic Social and Cultural
Rights has issued guidance on a number of aspects of the
right to an adequate standard of living, namely on food,
water and housing.338 Countries must ensure the availability and accessibility of the resources that are essential
to the realization of the right.339
In Europe, the main supervisory mechanism is the reporting system established in the European Social Charter
(ESC). In order to fulfil the overall goal of Article 16, ESC
states that parties must respect the differing housing needs
of marginalized social groups and provide social housing
that does not threaten social inclusion. Furthermore, the
protection of the right to housing may be achieved through
the ECtHR, as the European Court has adopted an integrated approach when dealing with different components
of this right. For example, in Oneryildiz v. Turkey,340 the
Court recognized that governments have duties to protect
persons occupying land without formal authorization. Although the Court did not consider the applicant in possession of a formal legal title to the land where he was living,
it found, nonetheless, that he was entitled to compensation
for the destruction of his house and personal items. In the
case of Moldovan v. Romania,341 police officers participated
in the forced eviction of Roma people and the subsequent
destruction of their homes. The state was held responsible
for the applicants’ subsequent inadequate living conditions,
and to have violated their Article 8 right to private and
family life. The European Court has ruled on the right to
housing in more than 100 cases.342
In the illegally occupied territories of Eastern Ukraine
and Crimea, prices for basic commodities (including
bread) have been rising on average due to higher risks
of production and delivery of goods into the occupied
towns through numerous checkpoints. Seasonal vegetables and fruits are more expensive than usual.343
42
Due to increased cases of looting, some private businesses and retailers have closed, which contributes to scarcity
of supply. Consequently, while basic products are always
available, the variety is severely reduced. There are frequent interruptions in delivery of dairy products, fruits
and vegetables, and non-alcoholic drinks.344
The Human Rights Monitoring Mission in Ukraine noted its concern and raised issues related to housing, electricity and water supply in Eastern Ukraine that affect
the right to an adequate standard of living. 345
Crimea is dependent on Ukraine for water, for agricultural and industrial products (75-80%), and electricity
(80-85%). Supplies of natural gas are probably only important for certain industrial plants; Crimea extracts a
significant amount of this material itself, and is able to
meet the vast majority of the needs from its own territory
(currently over 80%).346
Kyiv has not interrupted, and seems unlikely to interrupt, the supply of these raw materials to Crimea, because that would mean a de facto abandonment of its
sovereign rights over the peninsula, and also because
Russia could treat such a move as a casus belli and use
force to take over the hydroelectric power plant in Nova
Kakhovka in the Kherson region (the Kakhov Bay is also
a water source for Crimea).347
Therefore, the illegal annexation of Crimea raises serious
concerns about how to maintain and promote the right to
social security of the region’s population. Substantial dependence on Ukraine, combined with the negative effects
resulting from foreign occupation, not only threatens
this right, but also portends a darker future.
4. Right to speak one’s own language and to
maintain one’s own culture and tradition
The right to speak one’s own language and to maintain
one’s own culture belongs to the so-called minority
rights. These rights form an important sub-group of human rights and demand positive measures by the state.
Even if a state guarantees and safeguards civil and political rights (e.g. freedom of speech, freedom of assembly,
etc.), national or ethnic, religious and linguistic minorities are often still marginalized and discriminated by
the majority. Consequently, a state has to “take measures
to create favorable conditions”348 so that minorities can
develop, inter alia, their languages and cultures.
This holds especially true for linguistic minorities whose
languages are often endangered due to pressure by the
majority language group. The future of marginalized languages depends – apart from any sociolinguistic factors –
on legal possibilities for their use and protection. At the
same time, there is a close connection between language
use and a state’s language policy. Through its law and ad-
ministration, the state has an enormous influence on the
development and social status of languages. For instance,
a state could improve the situation of a marginalized language through its educational system: the language could
be taught as an elective or even as a compulsory subject.
Additionally, the affected language could be used as the
general language of instruction. On the other hand, the
educational system of a state can also be used to eliminate
a language by banning its use in all educational institutions, forcing a whole young generation into using and
adopting the majority language.
Although minorities under international human rights
law are guaranteed the right, inter alia, to use their own
language and to enjoy their own culture, there is great variety when it comes to the implementation of such rights
in a state’s national law. Even if a minority language is
granted official status, this does not necessarily mean
that such a language can be used in all public proceedings
(e.g. in administrative or judicial proceedings). Against
this background, the right to speak one’s own language
and to maintain one’s own culture guarantees minorities
in Crimea the right to use their language generally in the
private and public sphere. This includes oral as well as
written communication.
These rights are not altered by the fact that Crimea is
currently occupied by the Russian Federation. An occupying power generally has to respect the laws in force in
the affected country.349
Current situation in Crimea
linguistic and cultural minority rights are de facto not
guaranteed in Crimea (especially since its annexation by
the Russian Federation). Pursuant to the last Ukrainian
census in 2001, 58.5% of the Crimean population identified as belonging to the Russian ethnic group. Considerable minorities are Ukrainians (24.4%) as well as
Crimean Tatars (12.1%).350 As a result, the Russian language dominates in Crimea whereas the Ukrainian and
Crimean Tatar languages are used to a lesser extent.
As reported in other sections of this publication, Crimean Tatars are frequently targeted by authorities, since
they strongly opposed Crimea’s annexation by the Russian Federation. The misuse of the Russian counterterrorism law (e.g. the “Federal List of Extremist Materials”
banning the possession of certain publications) leads to
various restrictions of the Crimean Tatars’ right to speak
their own language and to maintain their own culture.351
The Russian and Crimean authorities especially target
Tatar organizations (e.g. the “Crimean Foundation,” a
charitable organization), seize their property and freeze
their assets in order to paralyze their work.352 Russian
authorities have also searched Crimean bookshops and
removed books about the Crimean Tatars.353 There is no
doubt that the Crimean Tatar minority is under heavy
pressure from the state authorities.
The Crimean authorities also violate the minority rights
of the Ukrainian population in Crimea by trying to reduce the use of the Ukrainian language. For instance,
the amount of televised Ukrainian-language content has
been significantly reduced since Crimea’s annexation in
March 2014.354 Also, the use of Ukrainian in Crimean
schools is under siege. There are various reports that the
language of instruction in schools or in certain classes
has been switched from Ukrainian to Russian.355 As a
result, Ukrainian children are deprived of their right to
receive education in their native language. According
to the Crimean authorities, this was done due to the
lack of applications from parents for the instruction in
the Ukrainian language. However, authorities often intimidated parents who demanded use of the Ukrainian
language.356 In addition, there are reports that teachers
of Ukrainian language and literature were harassed to
quit their jobs or to re-train for teaching Russian language and literature. Authorities also effectively banned
Ukrainian textbooks and searched schools to confiscate
them. Teachers who still used Ukrainian textbooks were
punished.357
the right to use one’s own language and maintain
one’s own culture relating to Crimea
The right to use one’s own language and maintain one’s
own culture is protected by international law. However,
there are fewer, less effective legal instruments to safeguard this right, in comparison to the classic civil and
political rights (such as freedom of speech or assembly).
Minority rights are contained in the International Covenant on Civil and Political Rights (“ICCPR”).358 It was
adopted by the United Nations General Assembly in 1966
and went into force in 1976. Not only is it a binding treaty,
but it also established the United Nations Human Rights
Committee as a monitoring body that requires state parties to regularly file human rights reports. Both Ukraine
and the Russian Federation are parties to the ICCPR359
and to its First Protocol establishing an individual complaints mechanism.360
Article 27 of the ICCPR guarantees that in those states
in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities should not be
denied the right, in community with other members of
their group, to enjoy their own culture, to profess and
practice their own religion, or to use their own language.
The content of Article 27 of the ICCPR is repeated in
Article 30 of the Convention on the Rights of the Child
(CROC»).361 Both Ukraine and the Russian Federation
are parties to the CROC.362
43
The European Convention on Human Rights (“ECHR”)363
does not contain specific provisions on minorities or on
the right to use one’s own language and maintain one’s
own culture. The ECHR, however, may still be relevant
for linguistic or other minorities due to its anti-discrimination provision in Article 14. Both Ukraine and the
Russian Federation are parties to the ECHR.364
The Framework Convention for the Protection of National Minorities365 is an important document for the
development of minority rights in international law. Both
Ukraine and the Russian Federation are parties to this
treaty. 366 However, the Framework Convention is not
comparable to other human rights instruments like the
ICCPR or the ECHR, since it merely contains political
declarations of intent and recommendations. As a result,
it cannot be used as an effective remedy against violations
of minority rights.
The same holds true for mere declarations that are not
binding on states. A respective example in the field of minority rights is the “Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities”367 adopted by the United Nations General
Assembly in 1992. Another example is the “Declaration
on the Rights of Indigenous Peoples”368 adopted by the
United Nations General Assembly in 2007.
The European Charter for Regional or Minority Languages369 is the only existing multi-lateral treaty in international law solely dedicated to the protection of endangered languages. However, similarly to the Framework
Convention, it merely contains political declarations of
intent and recommendations. Its ability to prevent violations of minority rights is therefore doubtful. Furthermore, whereas Ukraine is a party to this instrument, the
Russian Federation is not.370
Finally, it must be noted that none of the above-mentioned instruments contains a definition of the term
ethnic, religious or linguistic “minority.” In fact, there
is no commonly accepted definition of that term in international law at all.371 This is mainly due to the fact
that such a definition is a very delicate political issue.
Many countries either plainly deny the existence of minorities on their territory or want to avoid to be forced
to recognize the rights of certain minorities. If there is
no binding definition of a minority, it is easy for such
governments to manipulate minority rights to further
their own political goals.
In 1977, Francesco Capotorti, Special Rapporteur of the
United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, proposed the
following definition for the term “minority”:
• A group, numerically inferior to the rest of the population of a State, in a non-dominant position, whose
members – being nationals of the State – possess eth44
nic, religious or linguistic characteristics differing from
those of the rest of the population and show, if only
implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.372
On behalf of the above-mentioned Sub-Commission, this
definition was refined in 1985 by Jules Deschênes who
suggested the following wording:
• A group of citizens of a State, constituting a numerical
minority and in a non-dominant position in that State,
endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the
population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to
survive and whose aim is to achieve equality with the
majority in fact and in law.373
Against the backdrop of these definitions, both the
Ukrainians and the Crimean Tatars can be seen as minorities in Crimea and must be guaranteed respective
minority rights.
Right to use one’s own language and maintain one’s own
culture under the Constitutions of Ukraine and of the
Autonomous Republic of Crimea
Article 10 of the Ukrainian Constitution374 declares
Ukrainian to be the state language, but also guarantees
the free development, use and protection of Russian and
other languages of national minorities of Ukraine. In
addition, Article 53 guarantees to citizens who belong
to national minorities the right to receive instruction in
their native language, or to study their native language
in state and communal educational establishments and
through national cultural societies.
Article 10 of the Constitution of the Autonomous
Republic of Crimea states that alongside the official
language (i.e. Ukrainian), the application and the development, use and protection of Russian, Crimean Tatar
and other ethnic groups’ languages should be secured.
This report recognizes that Russian is spoken by the
majority of the Crimean population and that it should
continue to be used in all spheres of public life.
The use of minority language in Ukraine is also guaranteed by the “Law on the Principles of State Language
Policy” adopted in August 2012. An attempt to abrogate
this law to restrict the use of the Russian language by the
Ukrainian parliament was vetoed by the Acting President in February 2014.375
Right to use one’s own language and maintain one’s
own culture under the Constitutions of the Russian
Federation and of the Republic of Crimea
Article 26 subsection 2 of the Russian Constitution376
provides that everyone should have the right to use one’s
native language and to have a free choice of the language
of communication, upbringing, education and creative
work. Article 68 provides that the Russian language is
the state language on the entire territory of the Russian
Federation. However, republics (e.g. the «Republic of
Crimea») should have the right to establish their own
state languages. Furthermore, this article also guarantees
all peoples of the Russian Federation the right to preserve
their native language and to create conditions for its
study and development.
Article 10 of the Constitution of the «Republic of
Crimea» (as a federal subject of the Russian Federation)
lists Russian, Ukrainian and Crimean Tatar as official
languages. In addition, Article 10 subsection 3 recognizes
the principle of diversity of cultures, ensuring their
equitable development and enrichment.
5. Right to education
The right to education is of a social, economic and cultural character and belongs to the group of the so-called
second-generation human rights. Civil and political
rights (also called first-generation human rights), such
as freedom of speech, assembly or thoughts, require a
state merely not to interfere with these rights (e.g. not
to ban assemblies, etc). In contrast, second-generation
rights usually require a state to take positive action (e.g.
to provide education). Nevertheless, there is a close
connection between these two classes of human rights.
Social, economic and cultural rights are important to
enable persons to exercise their political rights in the first
place. This also applies to the right of education. Without
sufficient education, it is doubtful whether people would
be able to exercise their political rights effectively.
The right to education guarantees free education at least
in the elementary and fundamental stages and is protected by various international human rights treaties. This
right is not altered by the fact that Crimea is currently
occupied by the Russian Federation.377
Current situation in Crimea / Reports about
violations
According to the reports of various human rights organizations, Crimean authorities are restricting or banning
the use of the Ukrainian language as well as Ukrainian
textbooks in Crimean schools (for details in this regard
see section “right to one’s own language” above). Apart
from the language issue, there are no reports that the
Crimean authorities would violate the right to education
in a general way. However, the implementation of Russian law in the educational sector and the integration of
Crimean schools and universities into the Russian educational system create insecurities among students. For in-
stance, students of the Crimean State Medical University
(“CSMU”) are concerned that the international status of
CSMU could be lost under the new legal regime.378
Right to Education under International Law
The right to education is protected by various international legal instruments. Article 26 of the UDHR 379
guarantees this right and adds that education should be
free, at least in the elementary and fundamental stages.
Elementary education should be compulsory. Technical
and professional education should be made generally
available and higher education should be equally accessible to all on the basis of merit.
The right to education is also protected by the International Covenant on Economic, Social and Cultural Rights
(“ICESCR”).380 Its Article 13 provides, inter alia, that
• primary education should be compulsory and available
free of cost to all,
• secondary education in its different forms, including
technical and vocational secondary education, should
be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; and
• higher education should be made equally accessible to
all, on the basis of capacity, by every appropriate means,
and in particular by the progressive introduction of free
education.
Article 2 of the First Protocol to the ECHR 381 protects
the right to education. It states that no person should
be denied the right to education and adds that states
should respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. Both Ukraine and
the Russian Federation are parties to the First Protocol
to the ECHR.382
The right to education is also covered by Articles 28
and 29 of the CROC.383 Both Ukraine and the Russian
Federation are parties to the CROC.384
The legal instruments on the right to education as outlined above continue to be applicable even if a certain
territory is occupied by another country.385 In addition,
Article 50 of the Fourth Geneva Convention386 provides
that the Occupying Power should, with the cooperation
of the national and local authorities, facilitate the proper
working of all institutions devoted to the care and education of children. Apart from this, the above-noted international legal instruments on the right to education are
applicable to both Ukraine and the Russian Federation.
Consequently, the legal status of Crimea should have no
effect at all on the exercise of the right to education.
45
Right to Education under the Constitutions of Ukraine
and of the Autonomous Republic of Crimea
The right to education is protected under Article 53 of
the Ukrainian Constitution. 387 This article provides,
inter alia, that the state ensures accessible and free preschool, complete general secondary, vocational and
higher education in state and communal educational
establishments.
by the Constitution of Ukraine and Ukrainian laws, and,
pursuant to the same, by the Constitution of the Autonomous Republic of Crimea. As a result, all human
of Crimea.
Right to Education under the Constitutions of the
Russian Federation and of the Republic of Crimea
Article 43 of the Russian Constitution389 guarantees the
right to education and ensures, inter alia, free pre-school,
secondary and secondary vocational education in state
and municipal educational institutions.
The right to education is also guaranteed by Article 36
federal subject of the Russian Federation). The content of
this provision corresponds with Article 43 of the Russian
Constitution as outlined above.
6. Right to health
The right to health is the economic, social and cultural
right to a minimum standard of health to which individuals are entitled. It means that every individual has the
right to the highest attainable standard of physical and
mental health conducive to living life in dignity.
The human right to health is recognized and protected
in various international instruments.
1.Article 25 of the Universal Declaration of Human
Rights;
2.Article 12 of the International Covenant on Economic,
Social and Cultural Rights;
3.Article 24 of the Convention on the Rights of the Child
4.Article 5 of the Convention on the Elimination of All
Forms of Racial Discrimination;
5.Articles 12 and 14 of the Convention on the Elimination of All Forms of Discrimination Against Women;
6.Article 25 of the Convention on the Rights of
Persons with Disabilities.
46
7.The right to health has been proclaimed by the
Commission on Human Rights,390 as well as in the
Vienna Declaration and Programme of Action of 1993
and other international instruments.391
General Comment No. 14 (to Article 12 of the International Covenant on Economic, Social and Cultural
Rights, The Right to the Highest Attainable Standard
of Health Article392 is a comprehensive guide to understanding, implementing and advocating for the right to
health.
The right to health is closely related to and dependent
upon the realization of other human rights, as contained
in the International Bill of Rights, including the rights
to food, housing, work, education, human dignity, life,
non-discrimination, equality, the prohibition against
torture, privacy, access to information, and the freedoms
of association, assembly and movement. These and other
rights and freedoms address integral components of the
right to health.
According to the General Comment No. 14, “the realization of the right to health may be pursued through
numerous, complementary approaches, such as the
formulation of health policies, or the implementation
of health programmes developed by the World Health
Organization (WHO), or the adoption of specific legal
instruments.”393
Such programs and approaches include substitution therapy for opioid injection drug users that helps HIV/AIDS
prevention services, reduces HIV and hepatitis B and C
prevalence, reduces illegal drug use and overdose-related mortality, improves the physical and mental health
of drug-dependent patients, their integration in society,
supports adherence to HIV and TB treatment, reduces
crime and undermines the profitability of illegal drug
trafficking.394
The World Health Organization, UNAIDS, and UNODC
support maintenance programs. In their paper on maintenance therapy, they found that,
“
There is consistent evidence from numerous controlled trials, longitudinal studies
and programme evaluations, that substitution maintenance therapy for opioid dependence is associated with generally substantial reductions in illicit opioid use, criminal
activity, deaths due to overdose, and behaviors with a high risk of HIV transmission.” 395
Drug dependency is a chronic condition that needs to
be treated in accordance with the standards identified
by contemporary science and international best practices.396 Substitution maintenance therapy (SMT) has been
proven to be effective for HIV prevention among injection
drug users (IDUs) globally. Moreover, methadone and buprenorphine are on the WHO list of essential medicines.397
Ukraine has a high prevalence of HIV. It also has a high
prevalence of tuberculosis and multi-drug resistant tuberculosis. The prevalence of HIV is highest in the south
and east of Ukraine and the Autonomous Republic of
Crimea. 398
In 2004 Ukraine has made significant progress in introducing SMT buprenorphine programs as part of containing the country’s HIV epidemic. UNDP supported
this effort.399
The right of Ukrainian citizens to treatment and health
is guaranteed by the Constitution; specifically article 49
of the Constitution states that
“
Everybody has a right to health protection,
healthcare and medical insurance. Health
protection is provided by the state financing
of the proper socio-economic and health-prophylactic programs. The state creates terms
for effective medical service, accessible to all
citizens.”400
Over the last ten years, Ukraine has adapted the most
favorable and progressive legal and policy approach to
combating the spread of HIV/AIDS. Ukrainian law permits usage of substitute medications for medical purposes only. The impact of these efforts not only resulted in
improved HIV treatment outcomes but also in significantly decreased illicit drug use.401
As a result of Russia’s annexation of Crimea, 806 registered heroin addicts, who were receiving OST before the
takeover, no longer have access to the same treatment.
These individuals’ rights have been arbitrarily and substantially limited in violation of various international
standards, such as the International Covenant on Economic, Social and Cultural Rights, which the Russian
Federation ratified in 1973. Substance Maintenance
Therapy (SMT) was terminated in Crimea after May 6,
2014.404 People in the OST programs have not been given
any assistance with withdrawals and have been criminalized by the Crimean and Russian governments, which
is in direct violation of international human rights law.
A 2014 report by the Pompidou Group405 summarized
testimonies of 18 persons from Crimea previously enrolled in SMT. The report documents cases of major
changes in treatments, imposition of costs (previously
free of charge) for treatment, psychological pressure,
breaches of patient confidentiality, negative impacts on
employment, and increased mandatory drug screening.
Public health officials are concerned that the elimination
of SMT in Crimea not only restricts individuals’ rights to
health but also will cause the spread of HIV/AIDS in the
peninsula and will lead to unprecedented harm and injuries
to public health. It will undoubtedly heighten levels of HIV
and AIDS in the distressed region of Crimea, especially
since heroin users may resume using and sharing needles.
Currently, the situation with the right to health in Crimea
is dire, the HIV/AIDS epidemic has worsened, and public
health is at risk. Russia maintains a ban on the medical
use of methadone and buprenorphine in the treatment of
drug dependence and does not have maintenance therapy programs. It also rejects needle exchange programs
that have worked in Ukraine.
Crimea’s de facto authorities claim that heroin addicts
have been taken care of since the annexation by the Russian Federation. According to Sergei Donich, a former regional minister in the region’s de facto government, nearly 700 people have been taken off replacement therapy
and about 60 are being treated in health-care facilities.406
Maksim Mayshev, who runs a group lobbying for less
stringent drug policies in Russia, predicted that the vast
majority of them will revert to illegal drugs, noting that
even in Russia local drug addicts have no access to free,
comprehensive, and quality rehabilitation treatment.407
Russia’s law on narcotic and psychotropic substances, introduced in 1997, prevents the medical use of methadone and
prohibits the use of buprenorphine for treating drug dependence. Russia recommends that individuals dependent on
illicit drugs should just quit abruptly. Russia continues to
insist on its archaic approach to HIV/AIDS “prevention.”
HIV is spreading rapidly in Russia and, according to the
Russian Federal AIDS Center, the number of people registered as infected increased by nearly 11 percent in 2013.402
The denial of access to OST for people who use drugs and
live in Crimea jeopardizes their health and is a violation
of international obligations by the Russian Federation
to guarantee the right to health for those who live under
Russian jurisdiction or the territories under its control.
Russia is solely responsible and should be accountable for
the deaths of 20 individuals whose OST programs were
terminated, as well as others whose health significantly
deteriorated as the result of its unlawful acts.
In a 2007 report “Rehabilitation Required: Russia’s Human
Rights Obligation to Provide Evidence-based Drug Dependence Treatment,” Human Rights Watch urged Russia
to “immediately lift the ban on the medical use of methadone and buprenorphine in the treatment of drug dependence and introduce maintenance therapy programs.” 403
By denying access to OST for individuals living in Crimea
who use drugs, the Russian Federation violates the following international agreements and legal standards:
1.the International Covenant on Economic, Social and
Cultural Rights (1966),408
2.Convention against Torture (1984),
47
3.Convention on the Rights of the Child (1989),
4.Convention on Elimination of All forms of Dis-
crimination against Women (1979),
5.Council of Europe Convention on Human
Rights (1950).409
Limitations
The UN Committee on Economic Social and Cultural
Rights has stated that health is a fundamental human
right indispensable for the exercise of other human
rights. Therefore, there should be minimal and only defined justifiable limitations.
Issues of public health are sometimes used by States as
grounds for limiting the exercise of other fundamental
rights. The Committee emphasized that the Covenant’s
limitation clause, Article 4, is primarily intended to protect the rights of individuals rather than to permit the
imposition of limitations by States.410
The Covenant imposes on States immediate obligations
in relation to the right to health, such as the guarantee
that the right will be exercised without discrimination
of any kind (Article 2.2) and the obligation to take steps
(Article 2.1) towards the full realization of Article 12.
Such steps must be deliberate, concrete and targeted towards the full realization of the right to health.411
Core obligations
State parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of
each of the rights enunciated in the Covenant, including
essential primary health care. These core obligations include at least the following:
(a) To ensure the right of access to health facilities,
goods and services on a non-discriminatory basis,
especially for vulnerable or marginalized groups;
(b) To ensure access to the minimum essential food
which is nutritionally adequate and safe, to ensure
freedom from hunger to everyone;
(c) To ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water;
(d) To provide essential drugs, as from time to time
defined under the WHO Action Programme on Essential Drugs;
(e) To ensure equitable distribution of all health facilities, goods and services;
(f) To adopt and implement a national public health
strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of
the whole population; the strategy and plan of action
shall be devised, and periodically reviewed, on the
basis of a participatory and transparent process; they
shall include methods, such as right to health indicators and benchmarks, by which progress can be
closely monitored; the process by which the strategy
48
and plan of action are devised, as well as their content, shall give particular attention to all vulnerable
or marginalized groups.412
The Russian Federation currently has effective control of
Crimea, and by shutting down existing effective WHO
Action Programme on Essential Drugs such as OST and
needle exchange programs fails to fulfill its legal and
core obligations and duties. The continued ban on these
programs diminishes patients’ rights and freedoms to
primary health care.
Right to health free of charge
Recent reports from Crimea suggest further human rights
abuses. Sergiy Gruzdov reported413 that Crimeans have
been pressured to buy “voluntary” health insurance. In
his case Mr. Gruzdov paid 5,250 Rubles which is equal to
$86.00. He was told that without said health insurance
an individual wouldn’t be able to work, obtain his free
access to health or be admitted to the emergency room.
The policy was sold to Crimeans by an unknown Moscow
firm without specific information or guarantees to receive
any health care. If this “insurance” is in fact a requirement, it not only violated the right to health, potentially
the worker’s rights and is discriminatory in its nature, but
also creates basis for fraud and further violations.
Indigenous peoples and the right to health
Crimea has a diverse population, 12% of which are
Crimean Tatars414 who are recognized as indigenous people by Ukraine. It has to be noted that the Committee
deemed it useful to identify elements that would help to
define indigenous peoples’ right to health in order better
to enable States with indigenous peoples to implement
the provisions contained in Article 12 of the Covenant.
Indigenous peoples have the right to specific measures
to improve their access to healthcare and services. These
health services should be culturally appropriate, taking
into account traditional preventive care, healing practices and medicines. States should provide resources for
indigenous peoples to design, deliver, and control such
services, so that they may enjoy the highest attainable
standard of physical and mental health. The vital medicinal plants, animals and minerals necessary to the full
enjoyment of health of indigenous peoples should also be
protected. In indigenous communities, the health of the
individual is often linked to the health of the society as a
whole and has a collective dimension. In this respect, the
Committee considers that development-related activities
that lead to the displacement of indigenous peoples from
their traditional territories and environment against
their will, denying them their sources of nutrition and
breaking their symbiotic relationship with their lands,
has a deleterious effect on their health.415 It has to be
noted that Russian Federation is not a signatory to the
UN Declaration on the Rights of indigenous people.
Remedies for human rights violations
III. Remedies for human
rights violations
In this chapter, we consolidate some remedies that may
help address the violations of human rights in Crimea.
Some remedies are fairly universal, while others are more
specific, applicable only in select cases. All victims are
entitled to adequate reparations, which may take the
form of restitution, compensation, satisfactory redress,
or guarantees of non-recurrence.
Remedies for general human rights, as well as specific
violations, are categorized:
1.General Remedies for Violated Rights
2.Remedies for Specific Violations of Rights
(a) Freedom from torture or any other inhuman
treatment
(b) Freedom of Thought
(c) Freedom of Assembly
(d) Right to participate in state governance
(e) Right to own property
(f) Right to speak own language, right to education
and freedom of speech
These remedies are for national ombudsmen, human
rights commissions and groups, and similar institutions
to implement, and so they should proceed in these directions. Judges, law enforcement and public officers, and
other members of the legal profession must pay greater
attention to the rapid deterioration of human rights in
Crimea, implement mechanisms to enforce them, and
remedy growing violations.
General remedies
The following general remedies will help protect the human rights of all persons in Crimea and help withstand
the pressures applied by the Russian and Crimean authorities. Recommendations for Crimean residents and
their advocates include:
(a) to learn the meaning of their rights and freedoms,
and to be able to demand their enforcement;
(b) to exercise all possible legal remedies under the cur-
rent Crimean/Russian law in order to defend Crimean rights and freedoms, even if one is opposed to the
introduction of Russian law in Crimea;
(c) to comply with de facto applicable laws to avoid an
illegal status or sanctions, and to maintain scope
of action;
(d) to document all violations that were perpetrated
against Crimeans and report those violations to
authorities and local or international human rights
organizations;
(e) to pro-actively participate in investigations of human
rights violations by Crimean, Russian or Ukrainian
authorities, or international monitoring and investigative missions;
(f) to petition the Ukrainian Parliament for the continuous operation of a National Ombudsman in accordance with the Law on Occupied Territories; (g) to file complaints about violations with Ukrainian law
enforcement authorities, and administrative bodies;
(h) to file a lawsuit with local (Crimean or Russian)
courts for redress in form of declaratory or injunctive
order, damages, compensation or just satisfaction;
(i) to file individual and collective civil lawsuits with
Ukrainian courts against Ukrainians and Russians
whose actions lead to the violation of human rights
and freedoms in Crimea with regard to civil, political and selected economic rights. Residents of
Crimea may file a complaint with the ECtHR against
the Russian Federation or Ukraine, or both, for violations of the respective provisions of the ECHR;
if a violation is found, the State concerned may be
ordered to restore the right that was violated, to
guarantee that such violation will not recur, and to
amend legislation and pay compensation accordingly (just satisfaction);
(j) in case of violations of human rights and freedoms
protected by UDHR, ICCPR or ICESCR, Crimea residents may file a complaint with the UNHRC.
49
Specific remedies
In addition to the general remedies mentioned above,
these specific remedies may provide alternate legal means
of enforcing or enjoying the right. We recommend:
(a) Freedom from torture or any other inhuman
treatment – Freedom from torture, inhuman or
degrading treatment constitutes one of the most
important freedoms afforded to people everywhere. For that reason, the UN created a special mechanism to monitor, protect and redress
this fundamental freedom – the UN Committee
against Torture (CAT). Besides its prevailing monitoring function, the CAT may consider individual
complaints or communications from individuals
claiming that their rights under this Convention
had been violated, undertake inquiries, and consider inter-state complaints.416
(b) Freedom of thought:
1.access to electronic communication and social
media, including encrypted and anonymous
means, to disseminate religious views and/or
material;
2.access to the “samizdat” system (i.e. do-it-yourself
press), as was common in the Soviet Union, for
the grassroots creation and distribution of such
religious and other publications that are censored
or banned by the Crimean authorities;
3.organizing “house churches/mosques “ that meet
in private homes, enabling religious life (e.g. the
holding of ceremonies) and are probably less susceptible to the attention from the authorities than
in a public church/mosque
(c) Freedom of assembly:
1.even if a person opposes Crimea’s annexation by
the Russian Federation and, therefore, opposes the introduction of Russian law in Crimea,
all legal and practical possibilities granted by
the Crimean authorities to organize assemblies
should be exercised (i.e. trying to comply with
all administrative requirements in order not to
provide grounds for sanctions);
2.since the Russian and Crimean authorities focus
harassment on protesters who use the Ukrainian
or Tatar flag, we suggest the use of alternative symbols that attract less attention by the authorities;
3.holding small assemblies (preferably in a private
space) to exchange ideas and information with other members of the political opposition, since such
assemblies are easier to organize given the current
pressure on freedom of assembly in Crimea.
50
(d) Right to participate in state governance: Unfor-
tunately, the right to participate in governance is
not specifically provided for under the Human
Rights Commission, so it is doubtful that the
ECHR can entertain lawsuits that seek to gain
the right. Nonetheless, affected Crimean citizens
could assert their rights to participation in government by making their voices heard at all times,
such as petitioning both the United Nations and
the Council of Europe, both relevant international organizations to protest the discriminatory
derogation of their right to participate in governance. For its part, Ukraine can provide support
through diplomatic engagements with Russia to
ensure that Crimean citizens are allowed to partake in governance, especially at the local level,
irrespective of their political views.
(e) Right to own property: For those whose investments
in Crimea have been forcefully taken over by the Russian authorities, in addition to the general remedies,
the bilateral investment treaty between Russia and
Ukraine might also offer a viable forum for seeking
compensation through investor-state arbitration.417
(f) Right to speak one’s language of choice, right to
education and freedom of speech
1.books that are confiscated by the Crimean authorities (e.g. Ukrainian textbooks for schools or
Muslim/Tatar literature) should be digitized and
stored in clouds or on USB-sticks for preservation;
2.teaching of Ukrainian/Tatar language and literature within informal self-organized groups set up
in private homes, if these subjects are cancelled in
Crimean schools;
3.using electronic communication to receive media
(e.g. online newspapers, podcasts, TV channels
via internet) in Ukrainian or Crimean Tatar language, if such media is restricted by the Russian
and Crimean authorities;
4.using (preferably encrypted and/or anonymous)
electronic communication and social media to
articulate views and opinions suppressed by the
Crimean authorities;
5.using the “samizdat” system (i.e. do-it-yourself
press), as was common in the Soviet Union, for
the grassroots creation and distribution of publications in minority languages, about minority cultures, and any other publications that are
unlawfully censored or banned by the Crimean
authorities.
Conclusions and Recommendations
IV. Conclusions and
recommendations
The Russian Federation’s occupation and illegal annexation of Crimea has created a continuous stream of human rights violations encroaching on or even prohibiting
basic individual human rights and freedoms. The Russian Federation fails to comply with its obligations as
an occupying power, and the Ukrainian government is
not paying enough attention to the human rights issues
in Crimea.
In addition to the recommendations cited in the Razom
report published April 15, 2014, further findings have led
us to call on the Ukrainian and Russian governments,
civil society and the international community, to implement the following:
Remedies applying international law are not always available to victims with limited resources due to complex
procedures, limited jurisdiction, and resulting lengthy
proceedings. Our findings demonstrate the insufficiency of existing remedies for human rights violations and
mechanisms of the entire international system of human rights protection with respect to Crimeans. The
following recommendations are for those entities that
can help ensure human rights enforcement and protection in Crimea:
1.The Ukrainian Government
2.The Crimean de facto authorities and the Russian
government
3.The international community
4.NGOs and advocates on the ground
The role of the Ukrainian government is to develop and implement mechanisms that Crimean residents and refugees
can use to secure their rights and property. This includes
• collecting and preserving data;
• supporting legal proceedings;
• judicial services;
• secure transportation and aid;
• communications and media networks.
Existing national and international remedies are ineffective against such massive human rights violations as are occurring in Crimea. Russian authorities
deny responsibility, and Ukrainian authorities claim
the lack of ability and resources to respond properly.
For this reason, the concerted efforts of governments
and institutions worldwide are critical. Human rights
organizations such as Razom, Human Rights Watch,
the Office of the United Nations High Commissioner
for Human Rights, as well as the Atlantic Council and
Freedom House in cooperation with Andrii Klymenko
have reported extensively on human rights violations
in Crimea and recommended ways to address issues
affecting human rights in occupied Crimea. We concur
with their recommendations, and provide additional
recommendations.
Recommendations for the Ukrainian
government
Collect and preserve data
1.Create a data bank dedicated to storing information
and other data in electronic form. This databank
should be available to Crimean citizens to secure documents and information in their possession that testifies to their holdings and property, to human rights
violations, and other legal matters. 2.Provide Crimean citizens with the means to report
crimes and other violations of human rights to the
Ukrainian authorities.
3.Establish a telephone and internet “hotlines” for
Crimean citizens to report crimes and human rights
violations committed in Crimea.
4.Ensure the proper investigation of crimes committed
on the territory of Crimea, especially those against
citizens of Ukraine.
International legal proceedings
1.In cooperation with the UN, create a Special Court for
Ukraine with jurisdiction over crimes and other human
rights violations committed in Crimea during the Rus51
sian occupation. Such a court can also have jurisdiction
over crimes and human rights violations committed
during the Euromaidan protests between November
2013 and February 2014, as well as crimes committed
in the conflict in Eastern Ukraine. This Court should be
created by the UN General Assembly, apply the law of
Ukraine, but consist of internationally appointed judges,
prosecutors, investigators and defense lawyers.
2.Investigate and bring to justice individuals responsible
for the illegal actions in Crimea, including annexation
of the peninsula.
3.Provide legal and administrative aid to persons who
fled Crimea to escape actual or threatened violations
of their human rights.
4.Implement on the occupied territory legislation that
invalidates the actions taken by the Russian Federation.
Judicial services
1.Ensure the continuous operation of the Ombudsman
in accordance with the law on the o®iccupied territory
as passed by the Ukrainian parliament.
2.Ensure the Ombudsman and delegates regularly visit
Crimea to meet with local communities, indigenous
peoples, ethnic groups, political prisoners and persecuted individuals to maintain firsthand current
knowledge of the situation on the ground, to gather
information, and to record and report abuses.
3.Initiate criminal cases against those judges, law enforcements officials and Crimea executive service employees
who violated the rights of Ukrainian citizens in Crimea.
4.Appoint a statutory commission to investigate human
rights violations in Crimea and recommend and implement safeguards for the people of Crimea.
5.Ratify the Convention for the Protection of All Persons from Enforced Disappearances, and allow for the
Committee established under that instrument to hear
complaints from citizens of Crimea and other parties
regarding cases of enforced disappearance.
6.Take all possible steps to maintain substance treatment programs and ensure access to essential medicines in the Crimean territories, for patients to have
access to the treatments they need.
7.Work with the UN bodies and UNPFII to document
violations and secure the human rights of indigenous
peoples.
Secure travel and aid
1.Ensure that Ukrainians from the mainland can travel
as freely as possible to and from the peninsula to visit or
to participate in cultural and social exchange programs.
2.Organize and facilitate travel to the Crimean peninsula for Ukrainians from the mainland.
3.Facilitate and ensure favorable conditions for the Red
Cross and other NGOs to provide affordable food
markets in mainland Ukraine (Kherson Region), so
that the Crimeans can easily travel to access them.
52
4.Ensure that the sanctions remain in place until the
Crimean status quo as part of Ukraine is restored.
Media and communications
1.Ensure TV and radio broadcasts in both the Ukrainian
and Russian languages using conventional over-theair transmissions from mainland Ukraine to the
Crimean peninsula.
2.Provide select satellite phone service to people in the
Crimean peninsula. Provide the same 3G cell phone service that is available in mainland Ukraine by strategically
locating transmission towers providing optimal cell coverage for the Crimean peninsula from mainland Ukraine.
3.Simplify cell phone enrollment for Ukrainian residents currently residing in the Crimean peninsula.
Recommendations for Crimean
de facto authorities and
the Russian government
Russian and Crimean authorities must comply with international norms and law while safeguarding the rights
and welfare of residents of occupied Crimea.
Legal measures
1.The Russian Federation must withdraw its troops from
Crimea and restore Crimea as a Ukrainian territory to
prevent further massive human rights violations, and
negative social, economic and political consequences
and damages.
2.Guarantee human rights and fundamental freedoms
as outlined in the Constitutions of the Russian Federation and of the “Republic of Crimea.”
3.Bring persons who obstruct human rights in Crimea
to justice under civil and criminal law.
4.Disband the so-called self-defense units, investigate
their alleged criminal behavior (murder, torture, abduction, etc.) and ensure appropriate criminal proceedings.
Rights of citizens and minorities
1.Take positive measures to protect linguistic and reli-
gious minorities in Crimea (e.g. the Crimean Tatars).
2.Do not use the re-registration of media or religious
organizations, as required under Russian law imposed
in Crimea, to harass or prohibit select media and religious organizations.
3.Stop imposing Russian citizenship on Crimean residents.
4.Stop the implementation of Russian law in the sovereign state of Ukraine.
Comply with international norms
1.Pledge allegiance to uphold the General Assembly
resolution declaring the referendum illegal.
Conclusions and Recommendations
2.Ratify the Convention for the Protection of All Per-
sons from Enforced Disappearances, and allow for the
Committee established under that instrument to hear
complaints from citizens of Crimea and other parties
regarding cases of enforced disappearance.
Maintain medical care and social welfare
1.Urge the Russian Federation and Crimean authorities
to take all possible measures to maintain the existing
treatment programs for people who use drugs and to
ensure their access to essential medicines in Crimea.
2.Urge the Russian Federation to restore evidence-based
drug dependence treatment practices implemented by
Ukraine, immediately lift the ban on the medical use
of methadone and buprenorphine, together with other
programs of drug dependence treatment, reintroduce
maintenance therapy programs, and implement the
recommendations of this report.
Recommendations for the international
community
United, the international community can exert pressure
in various arenas to implement serious consequences for
Russia’s annexation of Crimea while also supporting the
resident-victims of the annexation, to include legal and
financial ramifications, human rights monitoring, maintenance of social welfare, and provisioning for media and
communications.
Legal and financial recourse
1.Remain united in sanctions imposed on the Russian
Federation until the Russian troops withdraw and
Crimea is restored as Ukrainian territory.
2.Condemn the Russian occupation of the sovereign
state of Ukraine.
3.Continue developing further measures and dialogue to
restore Ukraine’s territorial integrity and sovereignty,
and stop further deterioration of the situation on the
ground, including massive human rights violations.
4.Impose embargo or trade-level restrictions on Russia
for the violation of the principles of International law.
5.Introduce more rigorous sanctions on the individuals
who participated in invading, annexing and abetting,
as well as those responsible for human rights crisis.
6.Work on measures and plans to ensure the peaceful
withdrawal of Russian troops and transfer of Crimea
back to Ukraine.
7.Provide financial and intellectual help to the Ukrainian
law enforcement authorities for more effective investigation of human rights violations in Crimea.
Human rights
1.Closely monitor further developments related to hu-
man rights and fundamental freedoms in Crimea.
2.Urge the Crimean de facto authorities and the Rus-
sian government to comply with international human
rights standards.
Social welfare
1.The international community should extend funding
to NGOs and other bodies that provide drug dependence treatment and harm reduction services.
2.Urge those responsible to take all possible measures to
maintain the existing treatment programs for people
who use drugs and to ensure their access to essential
medicines in Crimea. 3.The international community, including UNAIDS,
WHO, and UNODC, should actively encourage
Russia to restore evidence-based drug dependence
treatment practices implemented by Ukraine, immediately lift the ban on the medical use of methadone
and buprenorphine, together with other programs of
drug dependence treatment in Crimea, reintroduce
maintenance therapy programs, and implement the
recommendations of this report.
1.Work with Ukraine to facilitate TV and radio broad-
casts in both Ukrainian and Russian languages using
conventional over-the-air transmissions from mainland Ukraine to the Crimean peninsula.
2.Work with Ukraine to provide selected satellite phone
service to people in Crimea peninsula. Provide the
same 3G cell phone service that will be available in
mainland Ukraine by strategically locating transmission towers to provide optimum coverage of the
Crimean peninsula from mainland Ukraine.
Recommendations for the people
and NGOs on the ground
Assistance on the ground in Crimea is needed to advocate for human rights and assure their enforcement; to
assure free aid and travel to Crimea, for it to not become
isolated from the west; and to assure use of mass media
and communications.
Advocate for human rights in Crimea
1.To raise awareness of the meaning of the respective
rights, as well as of the state obligations regarding
those rights and mechanisms of demanding their
fulfillment by direct application and vindication. 2.Report potential or actual infringements of human
rights and fundamental freedoms to state bodies as
well as international organizations (e.g. UN, OSCE).
3.Assist the HRMMU in collecting data regarding the
human rights violations.
4.Develop working relationships with various human
rights organizations and urge them to assist with
53
spreading the information to their counterparts,
finding the solutions, working on creating cultural,
educational and social programs for Crimeans on the
peninsula and in mainland Ukraine.
5.Human rights groups, international human rights organizations and NGOs should assist victims of human
rights violations by filing cases on their behalf, especially before the ECHR, or submitting amicus briefs
in support of plaintiffs.
6.Local and international human rights groups and organizations should cooperate and create universal platform for
keeping records about human rights violations in Crimea
that could then be used in evidence either locally, when the
legal and political situation in Crimea improves, or before
international adjudicatory bodies such as the ECHR.
7.Insist and monitor the Ukrainian government on
bringing to justice those individuals liable for the illegal actions in Crimea including annexation.
Aid and travel to Crimea
1.Use the tools of social media effectively in letting the
world know about the ground level truth in Crimea.
2.Insist on, organize and facilitate favorable conditions
for Ukrainians from the mainland and peninsula to
travel as freely as possible to and from Crimea, to visit
54
their relatives and friends and to participate in cultural, educational, and social events and programs.
3.Insist on and facilitate favorable conditions for the Red
Cross and other major NGOs to create affordable food
markets in mainland Ukraine, so that the Crimeans
can easily travel to access them.
1.Insist on providing TV and radio broadcasts in both
Ukrainian and Russian languages using conventional
over-the-air transmissions from mainland Ukraine
over Crimea peninsula.
2.Insist on providing selected satellite phone service to
people in Crimea peninsula. Provide 3G cell phone
service as available in mainland Ukraine by strategically locating transmitting towers to provide optimum coverage of Crimea peninsula from mainland
Ukraine.
3.International mass media should pay special attention to the human rights crisis in Crimea and secure
sufficient publicity for every case of violation against
human rights and fundamental freedoms in Crimea
that might serve some deterrence purposes or, at the
minimum, ensure the availability of public records of
those atrocities.
Endnotes
Endnotes
Note: All links to web pages were last visited on and were current as of May 30, 2015
1 Decree No. 156 of the RSFSR Council of Ministers
“Concerning the Transfer of the Crimean Oblast’ from the
RSFSR [Russian Soviet Federative Socialist Republic] to the
UkSSR [Ukrainian Soviet Socialist Republic ]”, 5 February
1954, available at: http://digitalarchive.wilsoncenter.org/document/119634 (cited as “Decree No. 156”).
2 Terry Martin, The Affirmative Action Empire: Nations And
Nationalism In The Soviet Union 1923-1939, p. 279 (2001).
3 Mark Kramer, The Transfer of Crimea from Soviet Russia
to Soviet Ukraine, available at http://www.wilsoncenter.org/
publication/why-did-russia-give-away-crimea-sixty-years-ago
(cited as “Kramer”).
4
Id.
5 Volodymyr G. Butkevych, Who Has a Right To Crimea?
Khrushchev’s ‘Gift’: The truth behind the calculation, available
at http://www.infoukes.com/history/crimea/page-12.html
(cited as “Butkevych”).
6
Kramer, supra at 3.
7
Butkevych, supra at 5.
8
Decree No. 156, supra at 1.
9 Minutes No. 41 of a Meeting of the Presidium of the Russian Soviet Federative Socialist Republic [RSFSR] Supreme
Soviet, 5 February 1954, available at: http://digitalarchive.wilsoncenter.org/document/119635 (cited as “Minutes No. 41”).
10 Decree of the Presidium of the UkSSR [Ukrainian Soviet
Socialist Republic] Supreme Soviet “Concerning the Submission of the RSFSR [Russian Soviet Federative Socialist Republic] Supreme Soviet Presidium Concerning the Issue of the
Transfer of the Crimean Oblast’ to the UkSSR, 13 February
1954, available at http://digitalarchive.wilsoncenter.org/document/119636.
11 Letter from D. S. Korotchenko and V. Ye. Nizhnik to K.
Ye. Voroshilov, with a report about the Decree of the Presidium
of the UkSSR [Ukrainian Soviet Socialist Republic] Supreme
Soviet, 15 February 1954, available at: http://digitalarchive.
wilsoncenter.org/document/119637.
12 Minutes of the Meeting of the Presidium of the USSR Supreme Soviet approving the transfer of Crimea from Russia to
Ukraine, 19 February 1954, available at: http://digitalarchive.
wilsoncenter.org/document/119638.
13 Ivanna Bilych, Alexander Gudko, Kateryna Kuntsevich,
Matheus Sena, Malvika Seth, Olena Sharvan, The Crisis in
Ukraine: It’s Legal Dimensions (14 April 2014), p. 20, available
at: https://s3.amazonaws.com/razominc /The_Crisis_In_
Ukraine_-_Its_Legal_Dimensions.pdf (cited as “The Crisis
in Ukraine: It’s Legal Dimensions”).
14 Adam Taylor, To Understand Crimea, Take a Look Back at
its Complicated History, Washington Post (27 February 2014),
available at: http://www.washingtonpost.com/blogs/worldviews/wp/2014/02/27/to-understand-crimea-take-a-lookback-at-its-complicated-history/.
15 In the referendum, 31,891,742 registered voters (or 84.18%
of the electorate) took part, and among them 28,804,071 (or
92.3%) voted “Yes”. The Act of Independence was supported by
a majority of voters in each of the 27 administrative regions of
Ukraine: 24 Oblasts, 1 Autonomous Republic, and 2 Special
Municipalities (Kiev City and Sevastopol City).
16 Mark R. Beissinger, Nationalist Mobilization and the Collapse of the Soviet State (Cambridge University Press 2002), p. 197.
17 Pål Kolstø, Russians in the Former Soviet Republics (Indiana University Press 1995), p. 191.
18 Charter of the United Nations, Chapter I, Article 2, available
at: http://www.un.org/en/documents/charter/chapter1.shtml.
19 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, adopted by
the UN Resolution No. A/RES/25/2625 dated 24 October 1970,
available at: http://www.un-documents.net/a25r2625.htm (reaffirming that the territory of a State shall not be the object of
acquisition by another State resulting from the threat or use
of force, and that any attempt aimed at the partial or total
disruption of the national unity and territorial integrity of a
State or country or at its political independence is incompatible
with the purposes and principles of the Charter).
20 Organization for Security and Co-operation in Europe
(OSCE), Conference on Security and Co-operation in Europe
(CSCE): Final Act of Helsinki, 1 August 1975, available at: http://
www.refworld.org/docid/3dde4f9b4.html (cited as “Final Act
of Helsinki”).
21 Charter of Paris for a New Europe adopted at the Meeting
of the Heads of State or Government of the participating States
of the Conference on Security and Co-operation in Europe
(CSCE), 19-21 November 1990, available at: http://www.osce.
org/mc/39516?download=true.
22 Budapest Memorandum: Memorandum on Security Assurances in Connection with the Republic of Belarus’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons; available at: http://unterm.un.org/DGAACS/unterm.
nsf/8fa942046ff7601c85256983007ca4d8/fa03e45d114224af85257b64007687e0.
23 Agreement Between the Russian Federation and Ukraine
on the Status and Conditions of the Russian Federation Black
Sea Fleet’s Stay on Ukrainian Territory, signed on 28 May 1997,
available in Ukrainian at: http://zakon4.rada.gov.ua/laws/
show/643_076. For English text see J.L. Black, ed., Russia &
Eurasia Documents Annual 1997: The Russian Federation, vol.
1, p. 129 (Academic International Press, 1998).
55
24 The Treaty of Friendship, Cooperation and Partnership between the Russian Federation and Ukraine, 31 May 1997, available in English at: http://kiev1.org/en/text-dogovora-13.html.
25 The Alma-Ata Declaration on the creation of the Commonwealth of Independent States, 21 December 1991, available in
English at: http://lcweb2.loc.gov/frd/cs/belarus/by_appnc.html.
26 Final Act of Helsinki, supra at 20, Article 1(a)II, para 4.
27 Ukrainian parliament ratifies agreement extending Russian Black Sea Fleet’s presence in Crimea, Kyiv Post (27 April
2010), available at: http://www.kyivpost.com/content/politics/
ukrainian-parliament-ratifies-agreement-extending--65103.html.
28 Eric Posner, The 1997 Black Sea Fleet Agreement Between
Russia And Ukraine (5 March 2014), available at: http://ericposner.com/the-1997-black-sea-fleet-agreement-between-russiaand-ukraine/.
29 Aksenov represented the Russian Unity Party, which garnered four percent of the popular vote in the last parliamentary
election.
30 See Vitaly Shevchenko, “Little Green Men” or “Russian Invaders”?, BBC (11 March 2014), available at: http://www.bbc.
com/news/world-europe-26532154; Alexei Yurchak, Little
Green Men: Russia, Ukraine and Post-Soviet Sovereignty, Anthropolitea (31 March 2014), available at http://anthropoliteia.
net/2014/03/31/little-green-men-russia-ukraine-and-post-soviet-sovereignty/.
31 Lenn Berry, Putin Admits Russian Soldiers Were In
Crimea, Slams West For Role In Ukraine Crisis, Huffington
Post (17 April 2014), available at: http://www.huffingtonpost.
com/2014/04/17/putin-ukraine_n_5165913.html.
32 The Crisis in Ukraine: It’s Legal Dimensions, supra at 13, p. 21.
33 Opinion No. 762/2014 of the European Commission For
Democracy Through Law (Venice Commission) on “Whether
the Decision taken by the Supreme Council of the Autonomous
Republic of Crimea in Ukraine to Organise a Referendum on
Becoming a Constituent Territory of the Russian Federation
or Restoring Crimea’s 1992 Constitution is Compatible with
Constitutional Principles”, 21-22 March 2014, available at:
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2014)002-e.
34 On 21 March 2014, the Venice Commission issued its own
written opinion. It determined that “the indivisibility of the
state is incompatible with secession.” It found that “the Constitution of Ukraine does not allow for a referendum on secession
. . . [I]t is typical for constitutions of Council of Europe member
states not to allow secession.” The Venice Commission further
noted that “self determination is understood primarily as internal self- determination within the framework of existing
borders and not as external self-determination through secession.” In its conclusion, the Venice Commission made the
following findings:
“1. The Constitution of Ukraine, like other constitutions of
Council of Europe member states, provides for the indivisibility of the country and does not allow the holding of any
local referendum on secession from Ukraine. This results in
particular from Articles 1, 2, 73 and 157 of the Constitution.
These provisions, in conjunction with Chapter X, show that
this prohibition also applies to the decision of the Autonomous
Republic of Crimea. The Constitution of Crimea does not allow
56
the Supreme Soviet of Crimea to call such a referendum. Only
a consultative referendum on increased autonomy would be
permissible under the Ukrainian Constitution.
2. Moreover, circumstances in Crimea did not allow the holding
of a referendum in line with European democratic standards.
Any referendum on the status of a territory should have been
preceded by negotiations among all stakeholders. Such negotiations did not take place. The Venice Commission also held that
the two ballot questions were invalid because they failed to offer
a status quo choice. In addition, the Commission noted that the
second question “could not be regarded as valid on its own.”
35 Crimea Parliament Declares Independence From Ukraine
After Referendum, The Huffington Post (17 March 2014),
available at: http://www.huffingtonpost.com/2014/03/17/
crimea-parliament-declares-independence_n_4977584.html
36 See Paul Roderick Gregory, Putin’s ‘Human Rights Council’
Accidentally Posts Real Crimean Election Results, Opinion on
Forbes (05 May 2014), available at: http://www.forbes.com/sites/
paulroderickgregory/2014/05/05/putins-human-rights-council-accidentally-posts-real-crimean-election-results-only-15-voted-for-annexation/; Ilya Syomin, Russian Government Agency Reveals Fraudulent Nature of the Crimean
Referendum Results, Washington Post (6 May 2014), available
at: http://www.washingtonpost.com/news/volokh-conspiracy/
wp/2014/05/06/russian-government-agency-reveals-fraudulent-nature-of-the-crimean-referendum-results/.
37 Crimea declares independence, seeks UN recognition, Russia Today (17 March 2014), available at: http://rt.com/news/
crimea-referendum-results-official-250/.
38 Agreement between the Russian Federation and the Republic of Crimea on the Accession of the Republic of Crimea
to the Russian Federation and on Forming New Constituent
Entities within the Russian Federation, available in English
at: http://en.wikisource.org/wiki/Treaty_on_the_Accession_
of_the_Republic_of_Crimea_to_Russia.
39 Vladimir Putin Signs Russia’s Annexation of Crimea Into
Law, NBC News (21 March 2014), available at: http://www.nbcnews.com/storyline/ukraine-crisis/vladimir-putin-signs-russias-annexation-crimea-law-n58526.
40 See e.g., Russian MP wants to rename Crimea, QHA Crimean News Agency (6 January 2015), available at: http://qha.com.
ua/russian-mp-wants-to-rename-crimea-132893en.html.
41 See Declaration for Rescue of Ukraine passed by the Verkhovna Rada (Ukrainian Parliament) on 20 March 2014, available in Ukrainian only at: http://zakon4.rada.gov.ua/laws/
show/1139-18.
42 See Law of Ukraine “On Protection of the Rights and
Freedoms of Individuals, and Legal Regime on a Temporarily
Occupied Territory of Ukraine” No. 1207-VII dated 15 April
2014, available in Ukrainian at: http://zakon4.rada.gov.ua/laws/
show/1207-18 and in English (paid access) at: http://zakon.nau.
ua/eng/doc/?uid=3024.122.7.
43 Simon Chesterman, Crimean War 2.0: Ukraine and International Law, available at: http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=2408872.
44 Article 8 bis (2)(g) of the Rome Statute of the International Criminal Court, p. 9, available at: http://www.icc-cpi.int/
iccdocs/PIDS/publications/RomeStatutEng.pdf.
Endnotes
45 Gregory H. Fox, The Russia-Crimea Treaty, Guest Post on
Opinio Juris (20 March 2014), available at: http://opiniojuris.
org/2014/03/20/guest-post-russia-crimea-treaty/.
46 Id.
47 The following 11 states voted against: Armenia, Belarus, Bolivia, Cuba, Nicaragua, North Korea, Russia, Sudan,
Syria, Venezuela, Zimbabwe. The following 100 states voted
in favor: Albania, Andorra, Australia, Austria, Azerbaijan,
Bahamas, Bahrain, Barbados, Belgium, Benin, Bhutan, Bulgaria, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, Colombia, Costa Rica, Croatia, Cyprus,
Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic, Estonia, Finland, France, Georgia, Germany, Greece, Guatemala, Guinea, Haiti, Honduras,
Hungary, Iceland, Indonesia, Ireland, Italy, Japan, Jordan,
Kiribati, Kuwait, Latvia, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malawi, Malaysia, Maldives, Malta, Marshall Islands, Mauritius, Mexico,
Micronesia, Moldova, Monaco, Montenegro, Netherlands,
New Zealand, Niger, Nigeria, Norway, Palau, Panama, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar,
Romania, Samoa, San Marino, Saudi Arabia, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands,
Somalia, Spain, South Korea, Sweden, Switzerland, Thailand,
Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United
Kingdom, United States.
48 Opinion No. 763/2014 of the European Commission For
Democracy Through Law (Venice Commission) on “Whether
Draft Federal Constitutional Law No. 462741-6 on Amending
the Federal Constitutional Law of the Russian Federation on
the Procedure of Admission to the Russian Federation and
Creation of a New Subject within the Russian Federation is
Compatible with International Law” (21 March 2014), available
at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)004-e.
49 For more detailed explanation of the concept of “military
occupation” see e.g., Roberts A., What is military occupation,
British Yearbook of International Law (1984) 55(1), pp. 249-305,
available with subscription at www.bybil.oxfordjournals.org/
content/55/1/249.full.pdf.
50 Customary International Humanitarian Law (IHL) Database based on the Study conducted by the International Committee of the Red Cross (ICRC), available at: https://www.icrc.
org/customary-ihl/eng/docs/home (cited as “Customary IHL
Rules”).
51 International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land
and Its Annex: Regulations Concerning the Laws and Customs
of War on Land, 18 October 1907, Article 43, overview and text
available at: https://www.icrc.org/applic/ihl/ihl.nsf/INTRO/195
(cited as “1907 Hague Regulations”).
52 See 1949 Geneva Conventions on international humanitarian law, Common Article 3 ,overview and texts available at:
https://www.icrc.org/eng/war-and-law/treaties-customary-law/
geneva-conventions/overview-geneva-conventions.htm; Geneva Convention Relative to the Protection of Civilian Persons in
Time of War (Fourth Geneva Convention), 12 August 1949, 75
UNTS 287, Article 13, available at: http://www.refworld.org/
docid/3ae6b36d2.html (cited as “Geneva Convention IV”);
Article 75(1) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts (Protocol I), 8
June 1977, 1125 UNTS 3, Article 75(1), available at: http://
www.refworld.org/docid/3ae6b36b4.html (cited as “Geneva
Protocol I”).
53 See Rights in Retreat: Abuses in Crimea, Report by Human
Rights Watch, p. 36, available at: www.hrw.org/sites/default/
files/reports/crimea1114web.pdf (cited as “HRW Report”).
54 Geneva Convention IV, supra at 52, Arts. 50, 55-57.
55 1907 Hague Regulations, supra at 51, Article 43.
56 Id., Article 45; Geneva Convention IV, supra at 52, Article
49.
57 1907 Hague Regulations, supra at 51, Article 55; See also
Convention for the Protection of Cultural Property in the Event
of Armed Conflict, 14 May 1954, Article 5, available at: http://
www.refworld.org/docid/40422c914.html.
58 Geneva Protocol I, supra at 52, Article 81.
59 Occupation and international humanitarian law: questions
and answers (a series of questions and answers by the ICRC’s
legal team on what defines occupation, the laws that apply, how
people are protected, and the ICRC’s role), available at: https://
www.icrc.org/eng/resources/documents/misc/634kfc.htm.
60 Customary IHL Rules, supra at 50, Rule 149.
61 See HRW Report, supra at 53, p. 20-23; Office of the
UN High Commissioner for Human Rights, Report on the
human rights situation in Ukraine, 15 November 2014, para.
216, available at: http://www.ohchr.org/Documents/Countries/
UA/OHCHR_seventh_reportUkraine20.11.14.pdf (cited as
“UN HR Report 15 Nov 2014”);
Office of the UN High Commissioner for Human Rights, Report on the human rights situation in Ukraine, 16 September
2014, para. 18, available at: http://www.ohchr.org/Documents/
Countries/UA/OHCHR_sixth_report_on_Ukraine.pdf (cited
as “UN HR Report 16 Sep 2014”);
Office of the UN High Commissioner for Human Rights, Report on the human rights situation in Ukraine, 28 August 2014,
para. 166, available at: http://www.ohchr.org/Documents/
Countries/UA/UkraineReport28August2014.pdf (cited as
“UN HR Report 17 Aug 2014”);
Office of the UN High Commissioner for Human Rights, Report on the human rights situation in Ukraine, 15 June 2014,
para. 284, available at: http://www.ohchr.org/Documents/
Countries/UA/HRMMUReport15June2014.pdf (cited as
“UN HR Report 15 JUN 2014”)
62 Draft Law of the Republic of Crimea “On Preventing Persecution of Persons for Actions Directed at Upholding Public
Order and Protecting Interests of the Republic of Crimea”,
available in Russian only at: http://www.rada.crimea.ua/textdoc/ru/6/project/1664.pdf.
63 Compare to ruling in Tadić case in 1999 (Tadić (IT-94-1)
“Prijedor”) – the International Criminal Tribunal for the former
Yugoslavia held that a State was responsible for the acts of individuals or groups that were not militarily organized and that could
be regarded as de facto State organs if the unlawful act had been
publicly endorsed or approved ex post facto by the State. More on
57
the Tadic case available at: http://www.icty.org/case/tadic/4.
64 Customary IHL Rules, supra at 50, Rules 156, 157.
65 Id., Rule 158.
66 See Overview of Jurisdiction and Admissibility of the International Criminal Court, available at: http://www.icc-cpi.
int/en_menus/icc/about%20the%20court/icc%20at%20a%20
glance/Pages/jurisdiction%20and%20admissibility.aspx.
67 International criminal justice: The institutions – Factsheet, 31 October 2013, available for download at: https://www.
icrc.org/en/document/international-criminal-justice-institutions#.vlujkivf_T9.
68 More information on the Special Tribunal for Lebanon
may be found on its official website: http://www.stl-tsl.org/.
69 Opinion No. 1-35/2001 of the Constitutional Court of
Ukraine “On the Conformity of the Rome Statute with the
Constitution of Ukraine” dated 11 July 2001, available in
Ukrainian only at: http://www.ccu.gov.ua/uk/doccatalog/
list?Currdir=8763. (Article 124 of the Constitution provides
that the administration of justice is the exclusive competence
of the courts and that judicial functions may not be delegated
to other bodies or officials).
70 For analysis of the interplay between international humanitarian law and human rights law see Noam Lubell, Human Rights Obligations In Military Occupation, International
Review of the Red Cross 94.885 (2012), pp. 317-337 (cited as
“Noam Lubell”).
71 See Status of ratifications of the Optional Protocol to the
International Covenant on Civil and Political Rights, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en.
72 More about the mission of the European Court of Human
Rights can be found on its official website: http://www.echr.coe.
int/.
73 European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine, ECHR Press Release, No. 345
dated 26 November 2014, available for download at: hudoc.echr.
coe.int/webservices/content/pdf/003-4945099-6056223.
74 Council of Europe, European Social Charter (Revised), 3
May 1996, ETS 163, Arts. C and D, available at: http://www.
refworld.org/docid/3ae6b3678.html.
75 UN Human Rights Committee (HRC), General comment
no. 31 [80], The nature of the general legal obligation imposed
on States Parties to the Covenant, 26 May 2004, CCPR/C/21/
Rev.1/Add.13, para 10, available at: http://www.refworld.org/
docid/478b26ae2.html.
76 UN Committee on Economic, Social and Cultural Rights
(CESCR), General Comment No. 2: International technical assistance measures (Article 22 of the Covenant), 2 February 1990,
E/1990/23, paras 6, 7(d), 9, available at: http://www.refworld.
org/docid/47a7079f0.html ; UN Committee on Economic,
Social and Cultural Rights (CESCR), General Comment No.
3: The Nature of States Parties’ Obligations (Article 2, Para. 1,
of the Covenant), 14 December 1990, E/1991/23, paras 13, 14,
available at: http://www.refworld.org/docid/4538838e10.html.
77 See e.g., Al-Skeini and Others v. United Kingdom, 55721/07,
European Court of Human Rights, 7 July 2011, available at:
58
http://www.refworld.org/docid/4e2545502.html; Catan and
others v. Moldova and Russia, 43370/04, 8252/05 and 18454/06,
European Court of human Rights, 19 October 2012, available
at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114082.
78 UN Committee Against Torture (CAT), UN Committee
against Torture: Conclusions and Recommendations, United States of America, 25 July 2006, CAT/C/USA/CO/2, para.
15, available at: http://www.refworld.org/docid/453776c60.
html; UN Committee Against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, 24
January 2008, CAT/C/GC/2, para. 16, available at: http://www.
refworld.org/docid/47ac78ce2.html.
79 Concluding Observations of the Committee on the Rights
of the Child: Israel, 4 October 2002, UN Doc. CRC/C/15/
Add.195, paras.2, 5, 57–58, available at: http://www.refworld.
org/pdfid/3df587210.pdf.
80 See e.g., Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, International Court of Justice (ICJ), 19
December 2005, available at: http://www.icj-cij.org/docket/
files/116/10455.pdf (cited as “DRC v. Uganda”).
81 Al-Skeini and Others v. United Kingdom, 55721/07, European Court of Human Rights, 7 July 2011, para. 138, available
at: http://www.refworld.org/docid/4e2545502.html.
82 Id.
83 Alissa de Carbonnel and Alessandra Prentice, Armed
men seize two airports in Ukraine’s Crimea, Yanukovich reappears, Reuters (28 February 2014), available at: http://www.
reuters.com/article/2014/02/28/ukraine-crisis-idUSL1N0LW2TS20140228.
84 Noam Lubell, supra at 70, p. 320.
85 See Jean-François Akandji-Kombe, Positive obligations under the European Convention on Human Rights, Human rights
handbooks, No. 7, available at: www.echr.coe.int/librarydocs/
DG2/.../DG2-EN-HRHAND-07(2007).pdf.
86 DRC v. Uganda, supra at 80, paras 178-179.
87 Ilascu and Others v. Moldova and Russia, 48787/99, European Court of Human Rights, 8 July 2004, para 331, available
at: http://www.refworld.org/docid/414d9df64.html.
88 International Covenant on Civil and Political Rights, 16
December 1966, United Nations, Treaty Series, vol. 999, p. 171,
Article 18(3), available at: http://www.refworld.org/docid/3ae6b3aa0.html (on the manifestation of freedom of religion) (cited as “ICCPR”); European Convention for the Protection
of Human Rights and Fundamental Freedoms, as amended
by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, Arts.
8(2), 9(2), 10(2), 11(2), available at: http://www.refworld.org/
docid/3ae6b3b04.html (cited as “ECHR”).
89 See ICCPR, supra at 88, Article 4; ECHR, supra at 88,
Article 15.
90 Derogation from human rights treaties in situations of
emergency, Rule of law in Armed Conflict Project (RULAC) by
the Geneva Academy of International Humanitarian Law and
Human Rights, available at:, http://www.geneva-academy.ch/
RULAC/derogation_from_human_rights_treaties_in_situa-
Endnotes
tions_of_emergency.php.
91 Lesia Shutko, Due to inactivity of the officials, Ukraine will
pay for human rights violations in the area of ATO and Crimea,
Ukrainian Helsinki Human Rights Union (12 Jan 2015), http://
www.helsinki.org.ua/index.php?id=1421054658.
92 The Law of Ukraine “On Securing the Rights and Freedoms of Citizens and the Legal Regime on the Temporarily
Occupied Territory of Ukraine” No. 1207-VII dated 15 April
2014, available in English at: http://usa.mfa.gov.ua/mediafiles/
sites/usa/files/2014.05.26_Law_on_occupied_Crimea.pdf (cited as “Law on Occupied Territory”).
93 Id., Article 6.
94 Id., Article 5(5).
95 Office of the United Nations High Commissioner for Human Rights, Report on the human rights situation in Ukraine,
15 May 2014, para 118, http://www.ohchr.org/Documents/
Countries/UA/HRMMUReport15May2014.pdf (cited as
“UN HR Report 15 May 2014”).
and civil rights, freedoms and obligations shall not have force
unless they have been officially published for the information
of the general public.
4. Universally recognized principles and norms of international
law as well as international agreements of the Russian Federation should be an integral part of its legal system. If an international agreem,ent of the Russian Federation establishes rules,
which differ from those stipulated by law, then the rules of the
international agreement shall be applied.”
107 The list and ratification status of International Human
Rights Treaties by the Russian Federation is available at: http://
www1.umn.edu/humanrts/research/ratification-russia.html.
108 Id.
109 Ruling of the Plenary Session of the Supreme Court of the
Russian Federation “On Application of the Convention for the
Protection of Human Rights and Fundamental Freedoms of 4
November 1950 and Protocols thereto by the Courts of General
Jurisdiction” No. 21 dated 27 June 2013, available in English at:
http://www.supcourt.ru/vscourt_detale.php?id=9155.
97 Olexander Martinenko, Victoria Kaplan, Volodymyr
Kolvakh, Ukraine creates a special legal regime in the Crimea,
Kyiv Post (6 May 2014), http://www.kyivpost.com/content/
company-news/ukraine-creates-a-special-legal-regime-inthe-crimea-346501.html.
110 Report of the Special Rapporteur on the independence
of judges and lawyers, Gabriela Knaul: Addendum: Mission
to the Russian Federation, UN Human Rights Council, 30
April 2014, A/HRC/26/32/Add.1, p. 8, (cited as “Knaul on the
Independence of Judges”), available at: www.ohchr.org/EN/
HRBodies/HRC/RegularSessions/Session26/Documents/A_
HRC_26_32_Add.1_ENG.DOC.
98 Law on Occupied Territory, supra at 92, Article 12.
111 Knaul on the Independence of Judges, supra at 110, p. 8.
99 Id., Article 7.
100 Id., Article 8.
112 See ECHR, supra at 88, Article 46 as amended by Protocol
No. 11.
101 Id., Article 10.
113 Knaul on the Independence of Judges, supra at 110, page 8.
102 HRW Report, supra at 53, p. 34.
114 Human Rights Watch, World Report 2014: Russia, p. 1,
available at: http://www.hrw.org/world-report/2014/country-chapters/russia.
103 The Law of Ukraine “On Citizenship of Ukraine” No.2235III dated 18 January 2001, Article 22, available in English at:
http://www.refworld.org/docid/44a280fa4.html.
104 Law of Ukraine “On Establishment of the Free Economic Zone “Crimea” and Peculiarities of Providing Economic
Activity on the Temporary Occupied Territory of Ukraine”
No. 1636-VII dated 12 August 2014, available in Ukrainian at:
http://zakon3.rada.gov.ua/laws/show/1636-18 and available for
purchase in English at: http://www.jurispub.com/cArticlephp?m=product_detail&p=17354.
105 The Constitution of the Russian Federation, First section,
Chapter 2, available in English at: http://archive.kremlin.ru/eng/
articles/ConstEng2.shtml (cited as “The Constitution of Russia”).
106The Constitution of Russia, supra at 105, Article 15
provides:
“1. The Constitution of the Russian Federation shall have supreme legal force, direct effect and shall be applicable on the
entire territory of the Russian Federation. Laws and other legal
acts, which are adopted in the Russian Federation, must not
contradict the Constitution of the Russian Federation.
2. State government bodies, local self-government bodies, officials, citizens and their associations shall be obliged to observe
the Constitution of the Russian Federation and laws.
3. Laws must be officially published. Unpublished laws shall
not have force. Any normative legal acts concerning human
115 Id., p. 2.
116 Id.
117 See Executive Order of the President of Russia “On Granting
Pardon to Mikhail Khodorkovsky” No. 922 dated 20 December
2013, available in Russian only at: http://news.kremlin.ru/media/events/files/41d4acffe70397d51c2d.pdf.
118 Russia – Country of Concern, Corporate Report by the Foreign & Commonwealth Office of the United Kingdom, updated
on 21 January 2015, available at: https://www.gov.uk/government/publications/russia-country-of-concern/russia-country-of-concern.
119 Id.
120 Id.
121 Solomou & Ors. v. Turkey, 36832/97, Judgment, European Court of Human Rights, 24 June 2008, para. 63, available
at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-87144 (cited as “Solomou v. Turkey”).
122 Arts. 1(3), 55 and 56 of the Charter of the United Nations
combine to provide for the promotion and encouragement of
“universal respect for, and observance of human rights and
fundamental freedoms” and states the pledges of members of
59
the United Nations to “take joint and separate action” towards
achieving this purpose.
123 See e.g., Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Article 3, available at: http://www.refworld.org/docid/3ae6b3712c.html (cited as “UDHR”); ECHR,
supra at 88, Article 2.
124 Solomou v. Turkey, supra at 121, para 44; See also Loizidou v. Turkey, 15318/89, Judgment (merits), European Court
of Human Rights, 18 December 1996, available at: http://hudoc.
echr.coe.int/sites/eng/pages/search.aspx?i=001-58007.
125 Solomou v. Turkey, supra at 121, para 25.
126 Crimea: Disappeared Man Found Killed, Human Rights
Watch (18 March 2014), available at: http://www.hrw.org/
news/2014/03/18/crimea-disappeared-man-found-killed.
127 See also Report on the Human Rights and Minority Rights
Situation, Organization for Security and Co-operation in Europe (OSCE), available at: http://www.osce.org/odihr/118476.
128Id., page 57 para 112.
129 Crimea: Enforced Disappearances. Crimean Tatars, Other Pro-Ukraine Figures Among the Missing, Human Rights
Watch (7 October 2014), available at: http://www.hrw.org/
news/2014/10/07/crimea-enforced-disappearances.
130 Report by Nils Muiznieks, Commissioner for Human
Rights of the Council of Europe, following his visit to Ukraine,
from 4 to 10 February 2014, para 14, available at: https://wcd.coe.
int/ViewDoc.jsp?id=2166645 (cited as “Muiznieks Report 2”).
131 Id.
132 The Constitution of Russia, supra at 105, Article 20.
133 The Constitution of Ukraine, 28 June 1996, Article 27,
available in English (Unofficial Translation) at: http://www.
refworld.org/docid/44a280124.html (cited as “The Constitution of Ukraine”).
134 See also Muiznieks Report 2, supra at 130, para 18.
135 Solomou v. Turkey, supra at 121, para 80.
136 ECHR, supra at 88, Article 33 empowers a State-party to
refer a case of violation of the Convention by another State-party to the European Court of Human Rights.
137These international instruments include Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the UDHR, Article 5 (“No one shall be
subjected to torture or to cruel, inhuman or degrading punishment”), the ICCPR, Article 7 (“No one shall be subject to torture,
or to cruel, inhuman or degrading treatment or punishment…”),
and the ECHR, Article 3 (“No one shall be subjected to torture
or to inhuman or degrading treatment or punishment”).
138 Article 2 of the CAT provides that “[e]ach party shall take
effective legislative, administrative, judicial or other measures
to prevent acts of torture in any territory under its jurisdiction”.
139 The Applicability of Human Rights Law to Occupied Territories: The Case of Occupied Palestinian Territories, Al- Haq Organization, page 76 (2003), available at: http://www.alhaq.org/
publications/publications-index/item/the-applicability-of-human-rights-law-to-occupied-territories-the-case-of-the-occupied-palestinian-territories.
60
140 The Constitution of the Autonomous Republic of Crimea
as adopted by the Ukrainian Parliament, Article 9(1), available
in English at: http://www.rada.crimea.ua/en/bases-of-activity/
konstituciya-ARK (cited as “the Constitution of ARK”).
141 Ukraine: Activists Detained and Beaten, One Tortured,
Human Rights Watch (25 March 2014), available at: http://
www.hrw.org/news/2014/03/25/ukraine-activists-detainedand-beaten-one-tortured.
142 Id.
143 See HRW Report, supra at 53.
144 Id.
145 Id.
146 See Muiznieks Report 2, supra at 130, para. 36.
147 See Cyprus v. Turkey, Decision on Admissibility in Applications Nos. 6780/74 and 6950/75, European Commission, paras.
11-15, available at: http://hudoc.echr.coe.int/sites/eng/pages/
search.aspx?i=001-74811.
148 See European Court of Human Rights deals with cases concerning Crimea and Eastern Ukraine, Press Release by the European Court of Human Rights, 26 November 2014, available for
download at: http://hudoc.echr.coe.int/webservices/content/
pdf/003-4945099-6056223 (cited as “ECHR Press Release”).
149 Law of Ukraine on Occupied Territory, Article 5(1) provides:
“Ukraine shall take all necessary measures to guarantee human
and citizens rights and freedoms provided by the Constitution
and the laws of Ukraine and by international treaties to all citizens of Ukraine residing in the temporarily occupied territory”.
150 See ECHR Press Release, supra at 148.
151 See also HRW Report, supra at 53, p. 20.
152 See Optional Protocol to the Convention Against Torture
and other Cruel, Inhuman and Degrading Treatment or Punishment, 9 January 2003, A/RES/57/199, Article 1, available at:
http://www.refworld.org/docid/3de6490b9.html.
153 UDHR, supra at 123, Article 8.
154 Programming for Justice: Access for All, A Practitioner’s
Guide to a Human Rights-Based Approach to Access to Justice,
UNDP 2005, available at: http://www.unicef.org/ceecis/Programming_for_Justice.pdf.
155 Golder v United Kingdom, 4451/70, European Court of
Human Rights, 21 February 1975, para 38, available at: http://
hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57496.
156 Ashingdane v United Kingdom, 8225/78, European Court of
Human Rights, 28 May 1985, para 57, available at: http://hudoc.
echr.coe.int/sites/eng/pages/search.aspx?i=001-57425 (quoting
from Golder v United Kingdom, supra at 155).
157 Id., para 58 (quoting Golder v United Kingdom, supra at 155).
158 Airey v Ireland, 6289/73, European Court of Human Rights,
9 October 1979, para 26, available at: http://hudoc.echr.coe.int/
sites/eng/pages/search.aspx?i=001-57420.
159 Boris Babin, International Legal Grounds for Access to Justice for Indigenous Peoples in Crimea, available at: http://e-notabene.ru/wl/article_12550.html (cited as “Babin”).
Endnotes
160 Federal Constitutional Law “On Acceptance of the Republic of Crimea into the Russian Federation and the Creation of
the New Constituent Entity within the Russian Federation –
the Republic of Crimea and the Federal City of Sevastopol”
No. 6-FCL dated 21 March 2014, Article 23(2), available in
Russian at: http://www.consultant.ru/document/cons_doc_
LAW_160618/ and available for purchase in English at: http://
www.jurispub.com/cArticlephp?m=product_detail&p=17395.
161 UN HR Report 15 JUN 2014, supra at 61, para 285.
162 Id.
163 Resolution of the Supreme Council of the Autonomous Republic of Crimea “On the Independence of Crimea” No. 17456/14 dated 17 March 2014, available in Russian at: http://www.
rada.crimea.ua/act/11748.
164 Babin, supra at 159.
165 Federal Law of the Russian Federation “On the Order
of Selection of Candidates for the Original Compositions of
Federal Courts Created in the Territories of the Republic of
Crimea and City of Federal Significance Sevastopol” No. 156ФЗ dated 23 June 2014, available in Russian only at: http://
www.rg.ru/2014/06/27/sud-dok.html.
166 Id.
167 Assessing Human Rights Protection in Eastern European Disputed and Conflict Entities, Report by the International Federation
for Human Rights (FIDH), 09 October 2014, available at: http://
www.fidh.org/IMG/pdf/rapport_disputed_entities_uk-ld3.pdf.
168 Disputed Entities in Eastern Europe: Human Rights Sacrificed, FIDH web-site, 09 October 2014, available at: http://
www.fidh.org/International-Federation-for-Human-Rights/
eastern-europe-central-asia/ukraine/16197-disputed-entities-in-eastern-europe-human-rights-sacrificed.
169 UN General Assembly, Territorial Integrity of Ukraine,
General Assembly Resolution. Res. 68/262, U.N. Doc. A/
RES/68/262, 1 April 2014, available at: http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/a_res_68_262.pdf (cited as “UN Resolution on Territorial Integrity of Ukraine”).
179 The Constitution of Ukraine, supra at 133, Arts. 32, 51.
180 UN HR Report 16 Sep 2014, supra at 61, p. 19.
181 Opinion on the Federal Law on Combating Extremist Activity of Russian Federation, The European Commission For
Democracy Through Law (Venice Commission), 1 June 2012,
Opinion No. 660/2011, available at: http://www.venice.coe.int/
webforms/documents/default.aspx?pdffile=CDL-AD(2012)016-e
(cited as “Venice Commission Opinion 660/2011”).
182 Venice Commission Opinion 660/2011, supra at 181, p.13.
183 Id., p.19.
184 Alissa de Carbonnel and Alessandra Prentice, Armed
men seize two airports in Ukraine’s Crimea, Yanukovich reappears, Reuters (28 February 2014), available at: http://www.
reuters.com/article/2014/02/28/ukraine-crisis-idUSL1N0LW2TS20140228.
186 See Monica Macovei, The Right to Liberty and Security of the Person: A Guide to the Implementation of Article
5 of the European Convention on Human Rights, Human
rights handbooks No. 5, 17 January 2015, pp. 17-19, http://
www.echr.coe.int/LibraryDocs/DG2/HRHAND/DG2-ENHRHAND-05%282004%29.pdf.
187 ICCPR, supra at 88, Article 9.
188 ECHR, supra at 88, Article 5.
189 International Convention for the Protection of All Persons
from Enforced Disappearance, UN General Assembly, 20 December 2006, Article 1(2), available at: http://www.refworld.
org/docid/47fdfaeb0.html (cited as “CPED”).
190 CPED, supra at 189, Article 5
191 Id., Article 23
192 Report by Nils Muiznieks, Commissioner for Human
Rights of the Council of Europe, following his mission in Kyiv,
Moscow and Crimea from 7 to 12 September 2014, para 19, available at: http://www.europarl.europa.eu/meetdocs/2014_2019/
documents/droi/dv/102_muiznieksreport_/102_muiznieksreport_en.pdf (cited as “Muiznieks Report 1”).
171 Id., Article 4.
193 See HRW Report, supra at 53, p. 8.
172 Id., Article 6.
194 See CPED, supra at 189, Part II.
173 Id., Article 5(5).
195 See Cyprus v. Turkey, 25781/94, Judgment, European Court
of Human Rights, 10 May 2001, available at: http://hudoc.echr.
coe.int/sites/eng/pages/search.aspx?i=001-59454.
174 Convention on the Rights of the Child, 20 November 1989,
United Nations, Treaty Series, vol. 1577, p. 3, Article 8, available at: http://www.refworld.org/docid/3ae6b38f0.html (cited
as “CROC”).
176 Office of the United Nations High Commissioner, Report on the human rights situation in Ukraine, 15 July 2014,
available at: http://www.ohchr.org/Documents/Countries/UA/
Ukraine_Report_15July2014.pdf (cited as “UN HR Report 15
Jul 2014”).
197 All But One Faith Persecuted In Occupied Crimea, Kharkiv
Human Rights Protection Group, 26 November 2014, available
at: http://khpg.org/index.php?id=1416974931.
199 Id., p. 44.
200 Id., p. 16.
201 Crimean Field Mission on Human Rights, Brief Review of
the Situation in Crimea, July-August 2014, p. 10, available at:
http://crimeahr.org/wp-content/uploads/2015/01/cfm_july_
61
august_eng.pdf.
230 Id., p. 26.
202 UN HR Report 16 Sep 2014, supra at 61, p. 32; UN HR
Report 15 May 2014, supra at 95, p. 30.
231 See UN Resolution on Territorial Integrity of Ukraine, supra at 169.
203 Sofia Kochmar, Muslims, Christians face new crackdown in
Crimea, The Washington Times (4 November 2014), http://www.
washingtontimes.com/news/2014/nov/4/faith-in-the-time-ofannexation-a-tough-choice-for/?page=all.
232 UN HR Report 17 Aug 2014, supra at 61, p. 29.
235 Observer and Guardian v. UK, supra at 215, para 59(a).
205 ECHR, supra at 88.
236 CROC, supra at 174, Article 13.
207 Status of ratification of the CROC is available at:
238 The Constitution of Ukraine, supra at 133, Article 34.
ht t p s : //t re at i e s .u n .or g / P a ge s / V i e wD e t a i l s . a s px?s rc=TREATY&mtdsg_no=IV-11&chapter=4&lang=en.
239 The Constitution of ARK, supra at 140.
208 Geneva Convention IV, supra at 52.
209 Geneva Protocol I, supra at 52.
210 Under the constitutional law of Ukraine Crimea is an autonomous republic within the territory of Ukraine. The Constitution of ARK, supra at 140.
213 Under the constitutional law of Russian Federation,
Crimea is a federal subject of the Russian Federation in the
form of a republic. The city of Sevastopol has the special status
of a federal city.
233 UDHR, supra at 123.
234 ICCPR, supra at 88.
240 Ukrainian parliament approves very dangerous draft law
on first reading, Reporters Without Borders (12 August 2014),
available at: http://en.rsf.org/ukraine-ukrainian-parliamentapproves-very-12-08-2014,46793.html.
241 See supra note 214.
243 New draconian legislation against backdrop of Ukrainian
conflict, Reporters Without Borders (21 July 2014), available at: http://en.rsf.org/russia-new-draconian-legislation-against-21-07-2014,46664.html.
245 UN HR Report 15 Nov 2014, supra at 61, p. 41.
215 See e.g., Observer and Guardian v. the United Kingdom,
13585/88, European Court of Human Rights, 26 November
1991, para 59(a), available at: http://hudoc.echr.coe.int/sites/
eng/pages/search.aspx?i=001-57705 (cited as “Observer and
Guardian v. UK”).
247 UN HR Report 15 JUN 2014, supra at 61, p. 52.
218 For detailed discussion of the broad counter-terrorism
law of the Russian Federation see Venice Commission Opinion
660/2011.
248 Id., p. 38.
249 Crimean Field Mission on Human Rights, Brief Review
of the Situation in Crimea, July-August 2014, p. 8, available at:
august_eng.pdf.
250 Id., p. 9.
220 Id., p. 18-19.
221 UN HR Report 15 Nov 2014, supra at 61, p. 43-44.
222 Id., pp. 25-26, 44-45.
224 Id., p. 20.
225 Id., p. 22.
259 Crimean Field Mission on Human Rights, Brief Review
of the Situation in Crimea, July-August 2014, p. 8, available at:
august_eng.pdf.
226 Id., p. 23.
227 Id.
228 Id., p. 24.
229 Id., p. 25-26; UN HR Report 15 Nov 2014, supra at 61, p.
44-45.
62
260“Each victim has the right to know the truth regarding the
circumstances of the enforced disappearance, the progress and
results of the investigation and the fate of the disappeared person”. CPED, supra at 194, Article 24(2).
Endnotes
261 UN Human Rights Council, Resolution No. 12/12, Promotion and Protection of All Human Rights, Civil, Political,
Economic, Social and Cultural Rights, Including the Right to
Development: Right to the Truth, A/HRC/RES/ 12/12, para 3,
12 October 2009, available at:
http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/
G09/165/99/PDF/G0916599.pdf?OpenElement.
262 See Ruti Teitel, Beyond Vienna & Beijing: Human Rights
Theory: Human Rights Genealogy, 66 FORDHAM L. REV. 301,
315 (1997).
263 Thomas Antkowiak, Truth as Right and Remedy in International Human Rights Experience, 23 MICH. J. INT’L L.
977 (2002), available at: http://digitalcommons.law.seattleu.
edu/faculty/421 citing to UN Economic And Social Council,
Commission On Human Rights, Question Of The Impunity Of
Perpetrators Of Human Rights Violations (Civil And Political):
Revised Final Report; Statement Submitted by Louis Joinet 13,
U.N. Doc. E/CN.4/Sub.2/20/Rev.l (1997).
264 Article 32: “Right of families to know the fate of their
relatives”; See also Varnava and Others v. Turkey, 16064/90,
16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90,
16072/90 and 16073/90, European Court of Human Rights, 18
September 2009, para 220, available at: http://hudoc.echr.coe.
int/sites/eng/pages/search.aspx?i=001-94162.
265 See McCann and Others v. UK, 18984/91, European Court
of Human Rights, 27 September 1995, available at: http://hudoc.
echr.coe.int/sites/eng/pages/search.aspx?i=001-57943; Aksoy
v. Turkey, no. 21987/93, ECHR, 18 December 1996, available
at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58003.
266 Patricia Naftali, Can a “Right to truth” be uncovered from
the European Court of Human Rights Case Law?, available at:
http://www.academia.edu/1725096/Can_a_Right_to_Truth_
be_Uncovered_from_the_European _Court_of_Human_
Rights_Caselaw.
267 Office of the UN High Commissioner for Human Rights,
Rule of Law Tools for Post-Conflict States: Amnesties, 2009, HR/
PUB/09/1, available at: http://www.ohchr.org/Documents/
Publications/Amnesties_en.pdf.
268 Bamaca-Veldsquez v. Guatemala, Order of the Court,
Inter-Am. Ct. H.R. (ser. C) No. 70, It 19-21 (Nov. 25, 2000)
(Ramirez, J., concurring opinion on the judgment on merits of
the Bamaca Veldsquez case), as cited in supra note 266.
269 See UN General Assembly, Resolution No. 59(I), 14 December 1946, available at: http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/033/10/IMG/NR003310.pdf?OpenElement.
Working Group on Enforced or Involuntary Disappearances,
General Comment on the Right to the Truth in Relation to
Enforced Disappearances, para 3, available at: http://www.
ohchr.org/Documents/Issues/Disappearances/GC-right_to_
the_truth.pdf.
man Rights, Report on the human rights situation in Ukraine,
15 December 2014, para 80, available at:
http://www.ohchr.org/Documents/Countries/UA/OHCHR_
eighth_report_on_Ukraine.pdf (cited as “UN HR Report 15
Dec 2014”).
274 Id.
275 Id.
276 UN HR Report 15 Nov 2014, supra at 61, para 215.
277 Law of the Republic of Crimea, “On the People’s Militia – The National Team of the Republic of Crimea”, available
in Russian only at: http://www.rada.crimea.ua/textdoc/ru/6/
act/22z.pdf.
278 Rights in Retreat, Human Rights Watch Report Summary, 17 November 2014, available at: http://www.hrw.org/ru/
node/130593/section/3#_ftnref2.
279 Order of the Head of the Republic of Crimea “On Gratitude and Distinguishing Sign of the Head of the Republic of Crimea”, available at: http://rk.gov.ru/rus/file/pub/
pub_233950.pdf.
280 UN HR Report 15 Dec 2014, supra at 273, para 211.
281 HRW Report, supra at 53, p. 24; UN HR Report 15 Nov
2014, supra at 61, paras 221-229.
283 ICCPR, supra at 88, Article 4(1).
284 Id.
285 See The Applicability of Human Rights Law to Occupied Territories: The Case of Occupied Palestinian Territories, Al- Haq
Organization (2003), p. 65, available at: http://www.alhaq.org/
publications/publications-index/item/the-applicability-of-human-rights-law-to-occupied-territories-the-case-of-the-occupied-palestinian-territories.
286 Id.
288 Id.
289 UN HR Report 15 May 2014, supra at 95, para 153, note
14.
290 Muiznieks Report 1, supra at 192, para 51.
291 Id.
292 UDHR, supra at 123, Article 2; I CCPR, supra at 88, Article
2(1); ECHR, supra at 88, Article 14.
293 The Constitution of Russia, supra at 105, Arts. 19, 24.
295 Law of Ukraine on Occupied Territory, Article 11.
296 Muiznieks Report 1, supra at 192, paras 29-33.
271 Id., para 4.
298 Id., p. 27.
299 Laughing all the way to the bank: Russia’s seizure of Ukrainian
banks in Crimea is still wreaking havoc with locals’ finances, The
273 Office of the United Nations High Commissioner for Hu-
63
Economist (20 November 2014), available at: http://www.economist.com/news/europe/21633949-russias-seizure-ukrainianbanks-crimea-still-wreaking-havoc-locals-finances-laughing-all.
301 ICCPR, supra at 88, Article 11
302 Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March
1952, ETS 9, Article 1, available at: http://www.refworld.org/
docid/3ae6b38317.html (cited as “Protocol 1 to the ECHR”).
303 The Constitution of Ukraine, supra at 133, Art 13.
304 See generally The Crisis in Ukraine: It’s Legal Dimensions,
supra at 13, pp. 19-31.
Report on the human rights situation in Ukraine, 15 June 2014,
p. 45, 15 April 2014, available at:
http://www.ohchr.org/Documents/Countries/UA/Ukraine_
Report_15April2014.doc.
306 Neil MacFarquhar, Seizing Assets in Crimea, From Shipyard to Film Studio, The New York Times (10 January 2015),
available at http://www.nytimes.com/2015/01/11/world/seizing-assets-in-crimea-from-shipyard-to-film-studio.html (cited
as “Seizing Assets in Crimea”).
307 UN HR Report, supra at 61, 15 June 2014., p. 54.
308 UN HR Report, supra at 61, 17 Aug 2014., p.30.
309 UN HR Report, 16 Sep 2014., p. 33.
310 UN HR Report, 15 Oct 2014., p. 46.
311 UN HR Report, supra at 61, 15 Nov 2014., p.46.
312 Id., p. 46.
313 The source for asserting the legal status of the ‘people militia’ was inferred from In 2015, People’s Militia will Cost 258 Million Rubles to Crimea, Krymedia (23 December 2014), available
at http://en.krymedia.ru/economics/3366030-In-2015-PeoplesMilitia-will-Cost-258-Million-Rubles-to-Crimea; The Crimean
legislation on the status of ‘people militia’, is available in Russian only at: http://crimea.gov.ru/textdoc/ru/7/act/197pr.pdf.
Series, vol. 1249, p. 13, Article 11, available at: http://www.refworld.org/docid/3ae6b3970.html (cited as “CEDAW”). Article 11.
322 CROC, supra at 174, Article 26(1).
323 European Social Charter (Revised), 3 May 1996, ETS
163, Article 12, available at: http://www.refworld.org/docid/3ae6b3678.html.
324 See Acceptance of provisions of the Revised European
Social Charter (updated on 17 March 2015), p. 3, available at:
http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/ProvisionTableRevMarch2015_en.pdf.
325 Conclusions (2013) on the conformity of the Russian Federation with Articles 3, 11, 12 and 14 of the European Social
Charter (Revised), European Committee of Social Rights, January 2014, available at: http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/RussianFederation2013_en.pdf.
326 Ensuring Social Security Benefits for Ukrainian Migrant
Workers: Policy development and future challenges, International Labour Organization (ILO) Decent Work Technical
Support Team and Country Office for Central and Eastern
Europe, Kyiv (2012), available at: http://www.ilo.org/wcmsp5/
groups/public/---europe/---ro-geneva/---sro-budapest/documents/publication/wcms_205317.pdf.
328 Olexander Martinenko, Victoria Kaplan, Volodymyr Kolvakh, Ukraine creates a special legal regime in the Crimea, Kyiv
Post (6 May 2014), available at: http://www.kyivpost.com/content/company-news/ukraine-creates-a-special-legal-regimein-the-crimea-346501.html.
329 Id.
330 See Federal Law of the Russian Federation “On Special
Aspects of Legal Regulation of Relations Pertaining to Social
Security (Support) and Compulsory Social Security Payments
to Certain Categories of Citizens Residing on the Territories
of the Republic of Crimea and the City of Federal Importance Sevastopol” No. 421-ФЗ dated 22 December 2014, brief
summary available in English at: http://en.kremlin.ru/acts/
news/47295 and full text available in Russian at: http://kremlin.
ru/acts/bank/39220.
316 Law of Ukraine on Occupied Territory, Article 11.
331 See Note on the signing of the Federal Law on Special
Aspects of Social Security in Crimea and Sevastopol, web-site
of the President of Russia, available in Russian only at: http://
kremlin.ru/acts/47295.
317 UN HR Report 15 Nov 2014, supra at 61, p. 46.
333 ICESCR, supra at 319, Article 11.
319 International Covenant on Economic, Social and Cultural
Rights, 16 December 1966, United Nations, Treaty Series, vol.
993, p. 3, Article 9, available at: http://www.refworld.org/docid/3ae6b36c0.html (cited as “ICESCR”).
334 Convention on Racial Discrimination, supra at 320, Article 5.
(In compliance with the fundamental obligations laid down in
article 2 of this Convention, States Parties undertake to prohibit
and to eliminate racial discrimination in all its forms and to
guarantee the right of everyone, without distinction as to race,
color, or national or ethnic origin, to equality before the law,
notably in the enjoyment of the following rights:[…]
(e) Economic, social and cultural rights, in particular: […]
(iii) The right to housing;[…]
314 Seizing Assets in Crimea, supra note 307.
320 International Convention on the Elimination of All Forms
of Racial Discrimination, 21 December 1965, United Nations,
Treaty Series, vol. 660, p. 195, Article 5, available at: http://
www.refworld.org/docid/3ae6b3940.html (cited as “Convention on Racial Discrimination”).
321 Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty
64
Article 7: States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education,
culture and information, with a view to combating prejudices
Endnotes
which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial
or ethnical groups, as well as to propagating the purposes and
principles of the Charter of the United Nations, the Universal
Declaration of Human Rights, the United Nations Declaration
on the Elimination of All Forms of Racial Discrimination, and
this Convention.)
350 Crimea population statistics, State Statistics Committee
of Ukraine, available at:
http://2001.ukrcensus.gov.ua/eng/regions/reg_crym.
335 CEDAW, supra at 321, Article 14.
( […]2. States Parties shall take all appropriate measures to
eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that
they participate in and benefit from rural development and,
in particular, shall ensure to such women the right:[…] (h)
To enjoy adequate living conditions, particularly in relation
to housing, sanitation, electricity and water supply, transport
and communications.)
353 UN HR Report 16 Sep 2014, supra at 61, p. 33.
337 Convention on the Rights of Persons with Disabilities,
UN General Assembly, 24 January 2007, A/RES/61/106, Article 28,
available at: http://www.refworld.org/docid/45f973632.html.
338 See Right to an adequate standard of living, including
food, water and housing, Guidance by the UN Committee on
Economic Social and Cultural Rights, available at the website of the Australian Government: http://www.ag.gov.au/
RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/Righttoanadequatestandardoflivingincludingfoodwaterandhousing.aspx.
339 Id.
340 Oneryildiz v. Turkey, 48939/99, European Court of Human
Rights, 18 June 2002, available at: http://www.refworld.org/
docid/3f2650b54.html.
341 Moldovan and Others v. Romania, 41138/98; 64320/01,
European Court of Human Rights, 12 July 2005, available at:
http://www.refworld.org/docid/4406d48a4.html.
342 See The right to an adequate standard of living, Mannréttindaskrifstofa Íslands [Icelandic Human Rights Centre],
available at: http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/substantive-human-rights/the-right-to-an-adequate-standard-ofliving.
343 UN HR Report 15 JUN 2014, supra at 61, p. 44.
344 Id.
345 Id.
351 See generally HRW Report, supra at 53, p. 8 et seq (overview of the persecution of the Crimean Tatars).
352 HRW Report, supra at 53, p. 13-14.
355 UN HR Report 15 JUN 2014, supra at 61, p. 53-54; UN HR
Report 16 Sep 2014, supra at 61, p. 34.
356 Crimean Field Mission on Human Rights, Brief Review of
the Situation in Crimea, July-August 2014, p. 22, available at:
august_eng.pdf.
357 The Situation in Education in Respect of the Right
to Teaching in or of Native (Non-Ukrainian) Language,
Ukrainian Center for Independent Political Research
(UCIPR), Monitoring No. 5, 16-30 November 2014, available
at: http://www.ucipr.kiev.ua/publications/the-situation-ineducation-in-respect-of-the-right-to-teaching-in-or-of-native-non-ukrainian-language-monitoring-no-5-16-30-november-2014/lang/en.
358 ICCPR, supra at 88.
359 Status of ratification of the ICCPR, available at:
360 Status of ratification of the First Protocol to the ICCPR,
available at:
361 CROC, supra at 174.
362 Status of ratification of the CROC, available at :
364 Status of ratification of the ECHR:
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=8&DF=14/01/2015&CL=ENG.
365 Framework Convention for the Protection of National
Minorities, 1 February 1995, ETS 157, available at: http://www.
refworld.org/docid/3ae6b36210.html (cited as “FCPNM”).
346 Tadeusz A. Olszański, Agata Wierzbowska-Miazga, The
Consequences of the Annexation of Crimea, the Centre for Eastern Studies (OSW), 19 March 2014, available at: http://www.
osw.waw.pl/en/publikacje/analyses/2014-03-19/consequences-annexation-crimea.
366 Status of ratification of the FCPNM, available at:
347 Id.
368UN Declaration on the Rights of Indigenous Peoples,
UN General Assembly, 2 October 2007, A/RES/61/295, available at: http://www.refworld.org/docid/471355a82.html.
348 See Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 3 February 1992, A/RES/47/135, Article 4(2), available at: http://www.
refworld.org/docid/3ae6b38d0.html (cited as “Declaration on
the Rights of Minorities”).
367 Declaration on the Rights of Minorities, supra at 348.
369 European Charter for Regional or Minority Languages,
Council of Europe, 4 November 1992, ETS 148, available at:
http://www.refworld.org/docid/3de78bc34.html.
370 Status of ratification of the European Charter for Regional
65
or Minority Languages, available at: http://conventions.coe.
int/Treaty/Commun/ChercheSig.asp?NT=148&CM=8&DF=16/01/2015&CL=ENG.
371 John R. Valentine, Toward a Definition of National Minority, 32 Denv. J. Int’l L. & Pol’y 445 (2004), available with
subscription at: http://heinonline.org/HOL/LandingPage?handle=hein.journals/denilp32&div=25&id=&page.
372 Francesco Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN Document E/CN.4/Sub.2/384/Add.1-7 (1977).
373 Jules Deschênes, Proposal Concerning a Definition of the
Term ‘Minority’, UN Document E/CN.4/Sub.2/1985/31 (1985).
375 Council of Europe, Report of the Advisory Committee
on the Framework Convention for the Protection of National
Minorities, Ad hoc visit to Ukraine on 21-26 March 2014, 2
April 2014, para 14, available at: http://www.coe.int/t/dghl/
monitoring/minorities/3_FCNMdocs/PDF_AdHoc_Report_
Ukraine_02apr2014_en.pdf.
378 UN HR Report, 16 Sep 2014, supra at 61, p. 34.
379 UDHR, supra at 123.
380 ICESCR, supra at 319, Article 13.
381 Protocol 1 to the ECHR, supra at 302.
382 Status of ratification of Protocol 1 to the ECHR:
383 CROC, supra at 174, Arts. 28, 29.
384 Status of ratification of the CROC, available at:
386 Geneva Convention IV, supra at 52, Article 50.
389 The Constitution of Russia, supra at 105, Art 43.
390 Non-discrimination in the field of health, Resolution of
the UN Commission on Human Rights, 2 March 1989, E/CN.4/
RES/1989/11, available at: http://www.refworld.org/docid/3b00f0b348.html.
391 See UN General Assembly, Principles for the Protection of
Persons With Mental Illness and the Improvement of Mental
Health Care, 17 December 1991, A/RES/46/119, available at:
http://www.refworld.org/docid/3ae6b3920.html; Committee
on Economic, Social and Cultural Rights, General Comment
No. 5, Persons with disabilities (Eleventh session, 1994), U.N.
Doc E/1995/22 at 19 (1995), available at: http://www1.umn.
edu/humanrts/gencomm/epcomm5e.htm; Programme of
Action of the International Conference on Population and
Development, Cairo 1994, available at: http://www.unfpa.
66
org/sites/default/files/event-pdf/PoA_en.pdf; Declaration and
Programme for Action of the Fourth World Conference on
Women, Beijing 1995, available at:
http://beijing20.unwomen.org/~/media/headquarters/attachments/sections/csw/pfa_e_final_web.pdf.
392 UN Committee on Economic, Social and Cultural Rights
(CESCR), General Comment No. 14: The Right to the Highest
Attainable Standard of Health (Article 12 of the Covenant), 11
August 2000, E/C.12/2000/4, available at: http://www.refworld.
org/docid/4538838d0.html (cited as “General Comment No. 14”).
393 Id.
394 Substitution Maintenance Therapy in Ukraine: Can the Community Respond Effectively to the Challenges of HIV/AIDS?, International HIV/AIDS Alliance in Ukraine, 2008, available at: http://
www.aidsalliance.org.ua/ru/library/our/pbzt/pdf/pb_en.pdf.
395 Substitution maintenance therapy in the management of
opioid dependence and HIV/AIDS prevention, Position Paper,
World Health Organization (WHO), UN Office on Drugs and
Crime (UNODC), Joint United Nations Programme on HIV/
AIDS (UNAIDS), Geneva 2004, p. 13, available at: http://www.
who.int/substance_abuse/publications/en/PositionPaper_English.pdf (cited as “HIV/AIDS Position Paper”).
396 HIV/AIDS Position Paper, supra at 395.
397 See G. Herget, Methadone and buprenorphine added to the
WHO list of essential medicines, Abstract, HIV AIDS Policy Law
Rev. 2005 Dec 10(3):23-4, available at: http://www.ncbi.nlm.
nih.gov/pubmed/16544403.
398 Epidemiological situation with respect to HIV/AIDS in
Ukraine, The Joint UN Programme on HIV/AIDS in Ukraine,
available at: http://www.unaids.org.ua/situation.
399 HIV/AIDS Position Paper, supra at 395.
400 The Constitution of Ukraine, supra at 133, Article 49, supra at 134.
401 Combating HIV through integrated care for drug users in
Ukraine, WHO, August 2012, available at: http://www.who.int/
features/2012/hiv_ukraine/en/.
402 No More Methadone or Bupe In Crimea Under Russian
Rule, NSW Users and Aids Association (NUUA), 7 May 2014,
available at: http://www.nuaa.org.au/methadone-bupecrimea-russian-rule/.
403 Rehabilitation Required: Russia’s Human Rights Obligation to Provide Evidence-based Drug Dependence Treatment,
Report by Human Rights Watch, November 2007, Volume 19,
No. 7(D), Part III, p.33 et seq, available at: http://www.hrw.org/
reports/2007/russia1107/russia1107web.pdf.
404 Id.
405 Substitution maintenance treatment in Ukraine: Humanitarian and medical mission 16-21 May 2014, Expert report, P-PG/
(2014) Misc 1rev, available at: http://www.coe.int/T/DG3/Pompidou/Source/focus/P-PG(2014)%20Misc%201rev%20Report%20
medical%20expert%20mission%20to%20Ukraine0406.pdf
406Oleksiy Arunyan, Crimea’s Methadone Ban Hitting
Rehab Patients Hard, Cutting Edge News (22 June 2014),
available at: http://www.thecuttingedgenews.com/index.
php?article=84395.
Endnotes
407 Viktor Rezunkov, Claire Bigg, Annexation Bad News For
Crimea’s Rehab Patients, Radio Free Europe/Radio Liberty (10
April 2014), available at: http://www.rferl.org/content/annexation-bad-news-for-crimeas-rehab-patients/25328258.html.
408 General Comment No. 14, supra at 392, explains in detail
the Right to the Highest Attainable Standard of Health:
“Article 12.2 (c). The right to prevention, treatment and control of
diseases. The prevention, treatment and control of epidemic, endemic, occupational and other diseases” (Article 12.2 (c)) requires
the establishment of prevention and education programmes for
behaviour-related health concerns such as sexually transmitted
diseases, in particular HIV/AIDS, and those adversely affecting sexual and reproductive health, and the promotion of social
determinants of good health, such as environmental safety, education, economic development and gender equity. The right to
treatment includes the creation of a system of urgent medical
care in cases of accidents, epidemics and similar health hazards,
and the provision of disaster relief and humanitarian assistance
in emergency situations. The control of diseases refers to States’
individual and joint efforts to, inter alia, make available relevant
technologies, using and improving epidemiological surveillance
and data collection on a disaggregated basis, the implementation
or enhancement of immunization programmes and other strategies of infectious disease control.”
Article 12.2 (d). “The right to health facilities, goods and services: “The creation of conditions which would assure to all
medical service and medical attention in the event of sickness” (Article 12.2 (d)), both physical and mental, includes
the provision of equal and timely access to basic preventive,
curative, rehabilitative health services and health education;
regular screening programmes; appropriate treatment of prevalent diseases, illnesses, injuries and disabilities, preferably at
community level; the provision of essential drugs; and appropriate mental health treatment and care. A further important
aspect is the improvement and furtherance of participation
of the population in the provision of preventive and curative
health services, such as the organization of the health sector,
the insurance system and, in particular, participation in political decisions relating to the right to health taken at both
the community and national levels.” General Comment No.
14, supra at at 392.
409 Statement on the Closure of Opioid Substitution Therapy Program in Crimea, Eurasian Harm Reduction Network
(EHRN), available at: http://www.harm-reduction.org/news/
ehrns-statement-closure-opioid-substitution-therapy-program-crimea.
410 Consequently a State party which, for example, restricts
the movement of, or incarcerates, persons with transmissible
diseases such as HIV/AIDS, refuses to allow doctors to treat
persons believed to be opposed to a government, or fails to
provide immunization against the community’s major infectious diseases, on grounds such as national security or the
preservation of public order, has the burden of justifying such
serious measures in relation to each of the elements identified
in article. Such restrictions must be in accordance with the law,
including international human rights standards, compatible
with the nature of the rights protected by the Covenant, in the
interest of legitimate aims pursued, and strictly necessary for
the promotion of the general welfare in a democratic society.
In line with article 5.1, such limitations must be proportional, i.e. the least restrictive alternative must be adopted where
several types of limitations are available. Even where such limitations on grounds of protecting public health are basically
permitted, they should be of limited duration and subject to
review. General Comment No. 14, supra at 392.
411 General Comment No. 14, supra at 392.
412 Id.
413 According to the information posted on Facebook on 28
January 2015 and confirmed in a personal conversation conducted via Skype, Facebook profile available at: https://www.
facebook.com/sergiy.gruzdov.
414 Crimean Tatars Profile, Unrepresented Nations and Peoples Organization (UNPO), 25 March 2008, available at: http://
unpo.org/members/7871.
415 General Comment No. 14, supra at 392.
416 UN Office of the High Commissioner for Human Rights
(OHCHR), Fact Sheet No. 17, The Committee against Torture,
January 1992, No. 17, available at: http://www.refworld.org/
docid/4794773d2.html.
417 See Agreement between the Government of the Russian
Federation and the Cabinet of Ministers of the Ukraine on
the Encouragement and Mutual Protection of Investments, 27
November 1998, Article 9, available at: http://investmentpolicyhub.unctad.org/Download/TreatyFile/2233.
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Case of Crimea - VOLYA Institute

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