укр eng рус

Content on this page requires a newer version of Adobe Flash Player.

Get Adobe Flash player

Recent news
References
Chambers Europe

“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Following the principle of sufficiency

04.06.2014

By Oleksandr Dementiev, lawyer, Ilyashev & Partners Law Firm
Source: Yurydychna Praktyka

The wide-scale tragic unpredictable events in modern Ukrainian history, which began in the second half of November 2013, still keep the multimillion Ukrainian people on their toes. Events that rallied patriotically minded Ukrainian people though not without the onslaught of tarpaulin shoe of pseudo brotherly Moscow.

Recent history

Each Ukrainian is deeply offended by the fact that the geography of the homeland is likely to never be the same. However, as it turned out, it is not enough for the Kremlin “benefactors” as annexation of a part of the Ukrainian territory is accompanied by so-called information-baiting. Though disappointing – at present, we have also lost this part of the Ukrainian-Russian conflict. Taking into account the long-term experience of such Kremlin propaganda-baiting, firstly, of own people, we shall not be surprised. Regretfully, this information conflict will continue for decades. After all, anti-Ukrainian propaganda behind headlines of television news programs, newspapers and online resources will penetrate into the school history textbooks, artificially imposing to the young Russians feud between the two nations.
Lamenting the unacceptable actions of the eastern giant, Ukraine is tirelessly knocking on the door to the west. It is obvious that the West has many reasons not to respond by force, but silent observation of events is also unacceptable. Who is responsible for numerous human rights violations in the Crimea?

It can be examined through the practices of the European Court of Human Rights (ECtHR). According to Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), the states parties to the Convention shall be responsible for any violations of the rights and freedoms defined in the Convention which are committed against persons under their jurisdiction.

The European Court paid particular attention to the definition of jurisdiction (cases “Gentilfom, Schaff-Benhaddzhi and Zerouki v. France”, judgment of 14 May 2002, para 20; “Banković and Others v. Belgium and 16 States Parties to the Convention”, application No. 52207/99, §§ 59-61; “Assanidze v. Georgia”, para 137).

In the international public law, the words “within their jurisdiction” in Article 1 of the Convention mean territorial authority of the state, but it is also assumed that jurisdiction is usually exercised throughout the state. While in the case of “Loizidou v. Turkey”, the European Court noted that the above presumption may be restricted in exceptional circumstances, especially in cases where the State is not allowed to exercise its power over a part of its territory as a result of the military occupation by the armed forces of another State, which actually control the occupied territory, and as a result of hostilities or insurrection, or actions of a foreign state supporting the creation of a separatist state in the relevant territory (judgment of 23 March 1995, and the case of “Cyprus v. Turkey”, No. 2578/94, paras 70-80 and the said judgment in Banković case, §§ 70-71).

In general, the European Court is of the opinion that where the State is prevented from exercising its authority throughout its territory, by creating de facto a situation with a separatist regime accompanied or followed by military occupation, it does not cancel jurisdiction under Article 1 of the Convention regarding that part of the territory, which is temporary subjected to local administration supported by the rebel forces or other state.

Jurisdiction reduced

However, such situation reduces the jurisdiction under obligations of the contracting state in accordance with Article 1 and is considered by the European Court only in the light of positive obligations given by the state in respect of the persons within its territory. Thereto, positive obligations mean use by the State (Government of Ukraine) of all available legal and diplomatic measures against foreign states and international organizations to provide guarantees of rights and freedoms under the Convention.

Speaking of presence/absence of human rights violations in a contracting party, which territory is partially occupied, in terms of execution/non-execution by the state of its positive obligations, the European Court considers, on the one hand, all objective facts proving restriction of the state’s possibility of exercising power on its territory, and on the other hand, the very behavior of the state.

Thereto, the European Court states that its responsibilities do not include the identification of specific actions to be carried out for the most effective performance of obligations. However, the European Court shall confirm that these actions were appropriate and sufficient in this case. Where nothing can be done either partially or fully, the European Court comes to determining the limit of minimum actions to be taken nonetheless and decides whether they are expedient. The Court emphasizes that, firstly, it is necessary in cases of infringement of the absolute rights guaranteed by Articles 2 and 3 of the Convention (the right to life and the right not to be tortured).

Not limited by the territory

Though in the above judgment in Banković case the European Court emphasized the priority of the territorial principle when applying the Convention (para 80), in the case of “Loizidou v. Turkey” it also acknowledged that the concept of jurisdiction according to Article 1 of the Convention is not necessarily limited to the national territory of the High Contracting Parties (judgment of 18 December 1996, para 52). The European Court also agreed that in exceptional circumstances actions of the states, which are contracting parties, were taken outside their territory and can be regarded as the exercise of their jurisdiction under article 1 of the Convention.

According to the relevant principles of international law, the state may be held liable in case of military actions – whether lawful or unlawful, and if it actually exercises control over the territory outside its national territory. The obligation to protect on the territory rights and freedoms set forth in the Convention, follows from the nature of control, whether it is exercised directly by the armed forces or by the subordinate local administration. Thereto, it is not necessary to determine whether the contracting party actually exercises detailed control over the policies and activities of the local administration in the territory located outside its national territory, since even full control over the territory may envisage responsibility of the contracting party concerned.

Further, in paragraph 77 of judgment in the case “Cyprus v. Turkey” the European Court notes that if a contracting state exercises full control over the territory outside its national territory, its responsibility is not limited to responsibility for the actions of its soldiers or officials on the relevant territory, but also extends to acts of the local administration acting on the territory through military or other support.
Following case law of the European Court’s in “Ireland v. the United Kingdom”, the Russian Federation can be held liable, even if its armed forces act ultra vires or contrary to instructions. Thus, according to the Convention, public authorities are responsible for behavior of its subordinates; public authorities are also required to impose their will and shall not shelter behind incapacity to secure what they shall secure (judgment of 18 January 1978, para 159, and Article 7, draft articles of the International Law Commission on the responsibility of states for internationally wrongful acts).

Summarizing the above, we can conclude that to determine whether Ukraine is responsible for human rights violations in the peninsula as a result of occupation by the armed forces of the Russian Federation, the European Court shall not consider execution/non-execution by Ukraine of negative obligations and focus solely on the actions of the state taken to protect human rights in the Crimea, and to prevent further escalation in this direction. In keeping with this logic, the European Court must first identify the degree of occupation of the Crimea in terms of ability to exercise any power on the territory by the Ukrainian authorities, and secondly, to analyze the actions taken by the Ukrainian Government in these conditions.

In contrast, with regard to the Russian Federation, it is obvious that the European Court is willing to meet the challenge and consider the Russian party as the main culprit of numerous gross violations of human rights and freedoms on the Crimean peninsula.

 
© 2017 Ilyashev & Partners / Mobile version