On January 14, 2021, the European Court of Human Rights published its decision on the case “Ukraine v. Russia”. The Grand Chamber of the Court has recognized complaints No. 20958/14 and No. 38334/18 as partially admissible for consideration on the merits. The decision will be followed by a judgment at a later date.

The case concerns the consideration of a violation of the European Convention on Human Rights related to Russia’s systematic administrative practices in Crimea. 

The admissibility of the case is based on the fact that, since 2014, the Russian Federation has exercised effective control over the territory of Crimea, and, accordingly, is fully responsible for compliance with the norms of the European Convention on Human Rights in Crimea. The Court now needs to determine the specific circumstances of the case and establish the facts regarding violations of Articles of the Convention during two periods: from February 27, 2014 to March 18, 2014 (the period of the Russian invasion); and from March 18, 2014 onward (the period during which the Russian Federation has exercised effective control over Crimea).

The Court has established that prima facie it has sufficient evidence of systematic administrative practice concerning the following circumstances:

• forced rendition and the lack of an effective investigation into such a practice under Article 2; 
• cruel treatment and unlawful detention under Articles 3 and 5; 
• extending application of Russian law into Crimea with the result that, as of  February 27, 2014, the courts in Crimea could not be considered to have been “established by law” as defined by Article 6; 
• automatic imposition of Russian citizenship and unreasonable searches of private dwellings under Article 8; 
• harassment and intimidation of religious leaders not conforming to the Russian Orthodox faith, arbitrary raids of places of worship and confiscation of religious property under Article 9;
• suppression of non-Russian media under Article 10; 
• prohibition of public gatherings and manifestations of support, as well as intimidation and arbitrary detention of organizers of demonstrations under Article 11; 
• expropriation without compensation of property from civilians and private enterprises under Article 1 of Protocol No. 1;
• suppression of the Ukrainian language in schools and harassment of Ukrainian-speaking children under Article 2 of Protocol No. 1; 6 
• restricting freedom of movement between Crimea and mainland Ukraine, resulting from the de facto transformation (by Russia) of the administrative delimitation into a border (between Russia and Ukraine) under Article 2 of Protocol No. 4; and, 
• discriminating against Crimean Tatars under Article 14, taken in conjunction with Articles 8, 9, 10 and 11 of the Convention and with Article 2 of Protocol No. 4 to the Convention.

Cases between states are the rarest category considered by the ECHR. Almost all cases considered in Strasbourg concern individuals or organizations and involve illegal actions or inaction of the states’ parties to the Convention. However, Art. 33 of this Convention provides that “any High Contracting Party may refer to the Court the question of any alleged violation of the provisions of the Convention and its Protocols by another High Contracting Party.” In the entire history of the ECHR since 1953, there have been only 27 such cases. Two of them are joint cases against Russia, both of which concern the Russian Federation’s aggression on the territory of its neighboring states, Georgia and Ukraine.

While 2020 gave us unprecedented challenges, it created transformative changes in the way we work and communicate. The hours of Zoom calls seemingly brought us all closer together as we got a glimpse into each other’s makeshift home offices along with interruption by kids and the family pets. Remote work also made us appreciate human interactions, in-person events and trips much more!

As 2020 comes to an end, we want to especially thank our supporters who continued to believe in our mission and the value of our hard work, and we hope the coming year brings all of us progress and growth for democracy throughout the world. We’d also like to thank our partners and staff in the U.S. and abroad, and we know how hard everyone has worked under difficult world changes to achieve so many of our objectives this year.

We send our best wishes to all who have stayed in the fight for democratic reforms and for the values of basic human rights. We look forward to a new year with the hope of many positive changes to come.

– Natalia Arno and the Free Russia Foundation team.

On December 11, 2020, Prosecutor of the International Criminal Court (ICC) Fatou Bensouda, issued a statement on the preliminary examination of the situation in Ukraine by the ICC Office of the Prosecutor.

According to the findings of the examination, the situation in Ukraine meets the statutory criteria to launch an investigation. The preliminary examination of the situation in Ukraine was opened on 24 April 2014.

Specifically, and without prejudice to any other crimes which may be identified during the course of an investigation, Office of the Prosecutor has concluded that there is a reasonable basis at this time to believe that a broad range of conduct constituting war crimes and crimes against humanity within the jurisdiction of the Court have been committed in the context of the situation in Ukraine.

These findings will be spelled out in more detail in the annual Report on Preliminary Examination Activities issued by the Office and include three broad clusters of victimization:

1.     crimes committed in the context of the conduct of hostilities;

2.     crimes committed during detentions;

3.     crimes committed in Crimea.

These crimes, committed by the different parties to the conflict, were sufficiently grave to warrant investigation by Office of the Prosecutor, both in quantitative and qualitative terms.

Having examined the information available, the Prosecutor concluded that the competent authorities in Ukraine and/or in the Russian Federation are either inactive in relation to the alleged perpetrators, or do not have access to them.

The next step will be to request authorization from the Judges of the Pre-Trial Chamber of the Court to open investigations.

The Prosecutor urges the international community, including the governments of Ukraine and Russia, to cooperate. This will determine how justice will be served both on domestic and the international level.

We remind you that on September 21, 2020, Free Russia Foundation sent a special Communication to the Prosecutor of the International Criminal Court (the Hague, the Netherlands) asking to bring Crimean and Russian authorities to justice for international crimes committed during the Russian occupation of Crimea.

Comment by Scott Martin (Global Rights Compliance LLP):

As Prosecutor Fatou Bensouda reaches the end of her tenure as Chief Prosecutor of the International Criminal Court, she announced yesterday that a reasonable basis existed to believe that a broad range of conduct constituting war crimes and crimes against humanity had been committed in relation to the situation in Ukraine. One of the most consequential preliminary examinations in the court’s short history, the Prosecutor will now request authorization from the ICC Pre-Trial Chamber to open a full investigation into the situation.

Anticipating that the Prosecutor’s request will be granted, the ICC Prosecutor’s office will be investigating the second group of alleged war crimes and crimes against humanity perpetrated by the Russian Federation (the situation in Georgia being the other). This would make Russia the only country in the world facing two separate investigations at the ICC for crimes under its jurisdiction.

The Free Russia Foundation invites submissions to The Kremlin’s Influence Quarterly, a journal that explores and analyzes manifestations of the malign influence of Putin’s Russia in Europe.

We understand malign influence in the European context as a specific type of influence that directly or indirectly subverts and undermines European values and democratic institutions. We follow the Treaty on European Union in understanding European values that are the following: human dignity, freedom, democracy, equality, the rule of law, and respect for human rights. Democratic institutions are guardians of European values, and among them we highlight representative political parties; free and fair elections; an impartial justice system; free, independent and pluralistic media; and civil society.

Your contribution to The Kremlin’s Influence Quarterly would focus on one European country from the EU, Eastern Partnership or Western Balkans, and on one particular area where you want to explore Russian malign influence: politics, diplomacy, military domain, business, media, civil society, academia, religion, crime, or law.

Each chapter in The Kremlin’s Influence Quarterly should be around 5 thousand words including footnotes. The Free Russia Foundation offers an honorarium for contributions accepted for publication in the journal.

If you are interested in submitting a chapter, please send us a brief description of your chapter and its title (250 words) to the following e-mail address: info@4freerussia.org. Please put The Kremlin’s Influence Quarterly as a subject line of your message.

On 21 September 2020, the Free Russia Foundation submitted a Communication to the International Criminal Court Prosecutor’s Office (in The Hague, Netherlands) seeking accountability for Crimean and Russian authorities concerning international crimes perpetrated during Russia’s illegal occupation of Crimea. The Communication was prepared in cooperation with Global Rights Compliance and Center for Civil Liberties and is based on a focused inquiry conducted over the past year. In our inquiry, we documented crimes as part of a systematic, planned attack by the Russian state against civilians and groups in Crimea in order to discourage them from opposing the illegal occupation of Crimea and to force their departure from the peninsula. Crimes against civilians included unlawful arrests, beatings, torture, enforced disappearances, and other inhumane acts causing severe mental and/or physical pain. In particular, the crimes targeted the Crimean Tatars, a native ethnic group who had only recently returned to their homeland, having previously been forcefully and brutally displaced by the Soviet Union in 1944.

One of the principal coercive acts was the illegal detention and concomitant violence before, during, and after the imprisonment of political prisoners. Most of those detained were arrested by Russian and Crimean authorities on terrorism charges, but it was their legal, pro-Ukrainian advocacy that led to their imprisonment. In addition, trials of those arbitrarily detained were conducted in wholesale disregard of their fair trial rights. For example, some of those illegally imprisoned were denied a speedy trial, access to independent lawyers, and the opportunity to defend themselves against their arrest in a courtroom.

In order to force those illegally detained to confess to crimes they did not commit, Russian and Crimean authorities also perpetrated acts of torture and cruel or degrading treatment, the levying of additional charges against them, even more inhumane prison conditions, denial of communications with their families and threats made against them, enforced disappearances, and even, in at least one case, a mock execution.

Other inhumane acts include “punitive psychiatry” and the denial of adequate prison conditions, including the following: (i) feeding people inedible food or, at times, no food at all; (ii) facing severe overcrowding in prisons; (iii) denial of regular water supply; (iv) threats of assault against them by prison cellmates; and (v) adding pork to food – prohibited for observant Muslims. Further, medical attention was systematically inadequate or denied for many individuals.

Concerning acts of torture, it was perpetrated by different Russian authorities, including the FSB. Allegations include the use of electric shocks in an effort to get an accused to confess. One was beaten in the head, kidneys, arms and legs with an iron pipe. With another, fingers were broken. Still another endured spinal bruises and having a plastic bag placed over his head to the point of unconsciousness. Further, threats of sexual violence against a detained man were made. Murder as well. Hands were broken, teeth were knocked out in still another.

Trials were largely held behind closed doors for illegitimate reasons, and many of the witnesses were secret not only to the public but also to the Accused. Further, credible allegations exist that, at times, there were FSB or other agents in the room, silently instructing witnesses what to say and how the judges should rule. This adds credence to words, according to the Kyiv Post, heard by Arsen Dzhepparov from a senior FSB lieutenant who stated “I will prove by all possible – and impossible – means that [an Accused is] guilty – even if he isn’t guilty”.

Concerning the crime of persecution, nearly all of these deprivations of fundamental rights were carried out with discriminatory intent. Specifically, these groups were targeted due to their political view – namely, by peacefully opposing the illegal occupation of their country. Some were targeted on ethnic grounds or religious grounds on the basis of their Crimean Tatar background.

War crimes, another group of crimes punished at the ICC, were also perpetrated in addition to or in the alternative to the crimes against humanity. This includes the crime of torture, outrages against personal dignity, unlawful confinement, wilfully depriving protected persons of the rights of a fair and regular trial, and the transfer of the occupying power of parts of its population into the territory it occupies or the deportation of all or parts of the population of the occupied territory within or outside this territory.

All these crimes had the ultimate objective of the criminal enterprise – the removal of pro-Ukrainian elements out of Crimea and the annexation of Crimea into the Russian Federation without opposition, including the installation of pro-Russian elements, which include the emigration of more than 70,000 Russians, the illegal imposition of Russian law in the occupied territory, forcing Russian nationality on many Crimeans, and the appropriation of public property.

Ultimately, we hope that all the information gathered by the ICC in the context of its preliminary investigation will lead the ICC to investigate mid- to high-level Russian and Crimean officials on this basis. The international community expects responsible global leadership that follows the rule of law and expects it – no matter the situation – to be respected, especially from a state that is a permanent member of the UN Security Council. When this fails to happen, the international community must demand accountability. We hope that an investigation can be opened and responsible officials of the Russian Federation will be investigated. After an investigation that conforms to international best practices, responsible persons should be charged with the systematic perpetration of international crimes.