Lies, denial, and negligence in ECHR
Russia’s arguments in case Ukraine and the Netherlands v. Russia.
While the tensions around the probability of Russia’s intervention in Ukraine intensify, the so-called legal battlefield has been unfolded in Strasburg. On 26 January, the European Court on Human Rights (ECHR) considered the case of the admissibility of the interstate case Ukraine and the Netherlands v. Russia related to Russia’s systematic human rights violations in the occupied territories of Ukraine, including the 2014 crash of the passenger jet MH17 as a result of which 298 people died.
Same as Russia’s general communication around the situation in Ukraine, among Russia’s main arguments in the court, were open lies and denial of any kind of responsibility. As well, the way how Russia was represented demonstrated the country’s negligence towards the process and European institutions in general.
Ukraine filed its first complaint to the ECHR in March 2014. It was related to the occupation of Crimea. In 2021, the preliminary victory for Ukraine on the case has been reached since the ECHR indicated that Russia has exercised effective control over the territory. Therefore, the court is to consider Ukraine’s complaint on the merits.
In 2020, the current case has been merged into one — Ukraine and the Netherlands v. Russia — out of the following three:
- Ukraine v. Russia regarding eastern Ukraine according to application #8019/16. It considers mass and systematic human rights violations on the temporarily occupied territories of Donetsk and Luhansk Oblasts.
- Ukraine v. Russia according to the application #43800/14 on children kidnapping and attempts of taking them from Donetsk and Luhansk Oblasts to Russia illegally in 2014.
- The Netherlands v. Russia according to application #28525/20 on the downing the passenger jet of the Malaysian Airlines MH17.
At the current stage, Ukraine requests to accept the application for considering the case on the merits, and after, to recognize that Russia’s jurisdiction extends to Crimea and the occupied territories of Donetsk and Luhansk Oblasts, according to Article 1 of the European Convention on Human Rights. In particular, Ukraine asks to recognize that Russia exercised effective control over the territories and therefore has to bear responsibility for human rights violations there. As well, Ukraine and the Netherlands are asking to admit that it was Russia that shot down the plane.
In the court, Ukraine highlighted that it is not Russia’s single attacks we are talking about, but Russia’s constant long-term policy, aspirations to return pre-revolutionary (1917) Russia, and its ambitions for Ukraine’s territories that are confirmed by Vladimir Putin’s statements referring to them as to ‘Novorossia’. Similar approach Russia has already implemented in Osetia, Transnistria, and Crimea.
In the court, Russia spoke first, denying literally everything.
Among Russia’s denials was a refusal to recognize any complaints declared in the interstate cases, refusal to recognize itself as a side of the conflict, considering the events described in the case as such that took place on the territories being out of Russia’s sovereignty, and considering the case as falsfied and its evidence as unreliable. As well, according to Russia, it has nothing to do at all with dawning the passenger jet MH17 as it happened in the airspace of Ukraine.
The latter, Russia proclaimed despite numerous investigations proving the opposite and in front of the MH17 victims’ relatives who were also present in court.
However, not only their presense contributed to the emotional atmosphere of the hearing. The way how Russia was represented could tell about the country’s disparaging attitude towards the process and the European human rights institutions in general.
In particular, the level of English of Mikhail Vinogradov, the Head of the Main Department for International Legal Cooperation of the General Prosecutors Office, one of Russia’s representatives seemed rather as poking fun at the process.
“I work with the ECHR a lot and this is the first time I see such an emotional and sharp process on an interstate complaint. Usually, the parties are represented by professional lawyers, so the level of, so to speak, discussions is always high, and the arguments are like shots from a sniper rifle: short and precise. This time, Russia’s arguments rushed like an automatic queue in the dark,” Sofia Korneeva, the Dead Lawyers Society observer comments.
While Ukraine was represented by the Ministry of Justice of Ukraine and Queen’s Counsel and the Netherlands by the Ministry of Foreign Affairs and lawyers, the weakness of Russia’s team might have demonstrated insignificance of the case for the country. However, Vinogradov’s statement to Russian Interfax might show that Russians do not see that there is a problem at all.
“We have applied all the positive experience of organizing this work, using the best personnel potential of the Ministry of Justice of Russia. The instruments for work in this direction have been expanded due to both the existing powers of the Russian prosecutor’s office and the new ones established by the Federal Law of July 1, 2021,” Vinogradov said.
The Dead Lawyers Society spoke to Ukraine’s Minister of Justice Denys Maliuska to figure out what message Russia might have put into sending such a week team to ECHR.
The Minister sees the possible reasons in Russia’s personnel problem. Maliuska assumes that qualified and reputable lawyers would not discredit their image on the international level by open lying before the court for the video record.
Together with that, the Minister commented on the fact of Russia’s termination of the contract with British barrister Michael Swainston who represented it in the case on Crimea.
“Russians have lost a touch of ‘civilization’ and this has significantly increased the tension in court compared to the Crimean case. Condemnations of relatives of the Dutch victims were heard from the hall during the meeting, and this is an extremely rare situation for the ECHR,” the Minister said.
In the interview with the Dead Lawyers Society, Ivan Lishchyna, Adviser to the Minister of Justice of Ukraine also thinks that termination of the contract with Swainston significantly influenced Russia’s stance. According to Lishchyna, the employees of Russia’s Prosecutor General’s Office do not have corresponding experience of performing in the international court institutions, do not speak English well, and have inappropriate for the circumstances prosecutor’s experience.
Lishchyna explains that usually governments positions in the ECHR are represented by countrys’ Ministries of Justice. However, last year, as a result of reform in Russia, the powers were transferred to the Prosecutor General’s Office.
“No one know what was the idea behind it. Maybe, the Ministry of Justice and their expensive team of foreigners were given unrealistic tasks that they could not cope with. Or, it was the opposite, the team has created inflated expectations for the Russian government that have not been met. Or maybe they thought that the Ministry of Justice would not be able to cope, let’s hand it over to the Prosecutor General’s Office, so they will be able to respond more harshly to the arguments. The sharpness has really increased, but at the same so did absurdity. For example, in the process, there was such a harsh and equally senseless remark from Russia ‘We are grateful to Ukraine for submitting an unfounded statement’.”
It is hard to predict when the ECHR will rule the decision on the admissibility. The decision on Ukraine’s first complaint was ruled after a year and four months.
Meanwhile, in 2020, Russia amended its Constitution allowing itself not to implement the decisions of the international courts. At the same time, it has not withdrawn from the Convention, therefore the ECHR decisions are obligatory for it.
Still, Lishchyna expects that after the decision is made Russia would not implement it anyway, creating senseless justifications for it. Same as it did in the case of Georgia v. Russia.
By Olena Makarenko and Sofiia Kornieieva.
