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Ukraine VS Russia. Battle at the European Court


Oleksandr Dementiev, lawyer at Ilyashev & Partners Source: RBC-Ukraine

Recently, the Prime Minister Arseniy Yatsenyuk wrote on his Twitter page that the Government of Ukraine had filed three lawsuits to the European Court of Human Rights against the Russian Federation. “We demand compensation of trillion losses caused to Ukraine”, stated the prime minister in the social network.

Shortly before that the head of the Ministry of Justice had already commented on the matter emphasizing that the Government had filed three applications to the European Court for inappropriate actions of the Russian party. At present we know that the applications refer to different aspects, but all of them are connected solely and exclusively with the offending aggression of the eastern giant in Ukraine.

It is logical that the greatest interest of the public stirred the first application against Russia, which was filed by our state back in March of the past year. This application is the most extensive of all inter-state lawsuits of Ukraine and contains well-grounded complaints of violation by the Russian Federation of the rights of Ukrainians provided by twelve articles of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The abovementioned rights are as follows: violation of the right to life (Art. 2); the right not to be subjected to torture or to inhuman or degrading treatment (Art. 3); the right to liberty and security of person (Art. 5); the right to a fair trial (according to the practice of the ECHR includes the right to a fair and comprehensive pre-trial investigation) (Art. 6); the right to respect for private and family life (Art. 8); the right to freedom of religion (Art. 9); the right to freedom of expression (Art. 10); the right to freedom of assembly (Art. 11); the right to an effective remedy (Art. 13); the right to non-discrimination (Art. 14); the right to the peaceful enjoyment of their property (Art. 1 of the First Protocol to the Convention) and the right to freedom of movement (Art. 2 of the Fourth Protocol to the Convention).

However, the key issues in the applications filed by Ukraine to the European Court against the eastern aggressor are as follows:

What do we get from it? What can we expect if the European Court approves judgment in out favor?

Thus, in accordance with the powers vested with the ECHR, fair compensation may comprise recognition by the European Court of a violation of the applicant’s (individual, legal entity, and Contractual State in case of inter-state petition) rights and awarding pecuniary compensation (in case of adjudicating moral and material damage to the applicant).

It shall be noted that both components of fair compensation that may be awarded by the European Court are equally important for Ukraine. The importance of judicial recognition of violation of the Ukrainians’ rights means, first and foremost, arrangement by the international court of relevant events, giving them a legal assessment.

Thus, the world will obtain a comprehensive legal instrument providing a clear and consistent description of the events that is very important, firstly, in a historical perspective. The world will know the truth as it is and there will be no other official interpretation.

The ECHR case law proves that finding of a violation is a sufficient satisfaction for all applicants. However, based on the case law of this international court it can be argued that in case of a favorable judgment for Ukraine, Russia will still have to pay for its shameful actions.

Consequently, the second aspect of just satisfaction – material is no less important. It is connected with property claims of the state, with material (pecuniary) damage to Ukraine. As noted above, at present trillion losses have been claimed, but over time the amount of damage caused by Russia to our country, no doubt, will only grow considering the continuing violations of human rights.

The European Court, if necessary, can conduct its own investigation (possibly visiting the country against which the application was lodged), and pursuant to the Convention the relevant country is obliged to create all necessary conditions for ascertaining the facts stated in the application.

The European Court can consider the application for years as in our situation, unfortunately, we have to deal with the continuing violations, constant escalation of the conflict, which, in turn, increases the damage caused to Ukraine every day.

We can assume that the European Court already has enough convincing evidence to approve a reasoned judgment. Under such circumstances, the court has the opportunity to approve a judgment stating the relevant human rights violations, then according to the Rules, determination on awarding fair compensation may be delayed for a longer period. During this period, the court may continue to collect evidence of violations of the Ukrainians’ rights committed after approval of the first judgment.

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