| Applicant name | Ukraine |
| Applicant type | state |
| Number of applicants | 1 |
| Country | Russia |
| Application no. | 20958/14 38334/18 |
| Date | 25/06/2024 |
| Judges | Síofra O’Leary, Georges Ravarani, Marko Bošnjak, Gabriele Kucsko-Stadlmayer, Pere Pastor Vilanova, Arnfinn Bårdsen, Krzysztof Wojtyczek, Faris Vehabović, Stéphanie Mourou-Vikström, Tim Eicke, Lətif Hüseynov, Jovan Ilievski, Gilberto Felici, Erik Wennerström, Ioannis Ktistakis, Diana Sârcu, Mykola Gnatovskyy |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Procedural requirments; prescribed by law |
| Type of privacy | Procedural privacy; private life; locational privacy |
| Keywords | |
| Facts of the case | Invasion |
| Analysis | First point: With regard to the first group of “Ukrainian political prisoners” (those arrested and sentenced in the Russian Federation), the Court considers that the essential issue raised is whether a refusal by Russia to transfer them to Ukraine falls within the scope of Article 8 of the Convention. In this connection, the Court notes that there is no evidence that Russian law confers on the prisoners a right to be transferred to Ukraine. The applicant Government did not refer to any relevant legal provisions indicating the existence of such a right; nor has any domestic court decision ordering such a transfer been submitted to the Court. Accordingly, it cannot be maintained that the prisoners have any substantive right under Russian law to be transferred to their country of origin. The Court has consistently held, moreover, that it is not for Article 8, however broad its scope, to fill an alleged gap in fundamental rights protection which results from the decision of the respondent State to exercise the possibility, in accordance with international law, of not providing a particular substantive right. The Court accordingly declares this complaint regarding the inability to obtain the transfer to Ukraine of the “Ukrainian political prisoners” arrested and sentenced in the Russian Federation and then held in penal facilities in the Russian Federation, by reference to the 1983 Convention on the Transfer of Sentenced Persons, inadmissible on the grounds that it falls outside the ratione materiae jurisdiction of the Court. Point two: The applicant Government alleged that the opt-out system was ineffective given the procedural obstacles imposed by the Russian authorities. The Court notes that the relevant reports by IGOs and NGOs (the 2014 Commissioner’s Report, the 2017 OHCHR Report, the 2014 Human Rights Watch, and reports of the Open Society Justice Initiative, and the Ukrainian Helsinki Human Rights Union) referred to multiple obstacles/constraints in the practical exercise of the opt-out process, including “the extraordinarily short grace period” during which the option applied, the limited information available about the procedure and the limited number of locations where individuals could declare their intention to opt out. In particular, the procedure was effectively only available for eighteen days (owing to the failure of the FMS to provide instructions on the refusal procedure until 1 April 2014); initially only two, and ultimately nine FMS offices were made available to receive and process such applications. Offices were difficult to access for residents living in the countryside. The offices also had insufficient capacity to process such applications. Furthermore, there were no clear instructions whether persons outside Crimea at the relevant time could apply to opt out in the embassies and consulates of the Russian Federation. This was to be contrasted with the system of receiving Russian passports, which could be requested by mail or in person at many designated offices around Crimea or any Russian consulate or embassy. The reports referred to above were consistent in reporting that the procedural requirements for refusing Russian citizenship “evolved” over a short period of time, including the requirement to make the application in person and the requirement that both parents make the application and/or be present to apply on behalf of their children. The documentary material provided by the Ukrainian authorities and the witness evidence corroborated the above reports in these respects (A 266‑71; 362 and 420). The respondent Government did not contest the above observations and limited themselves to stating that Federal Law no. 62‑FZ of 31 May 2002 provided for a clear and reasonable procedure for opting out of Russian citizenship. The Court notes that the above deficiencies did not directly derive from that Law, but were the result of the implementation in practice of the system providing for the opt out . They were of such a scale and intensity as to prevent the permanent residents of Crimea concerned to effectively enjoy the possibility to opt out of Russian citizenship. Therefore, there has been a violation of Article 8 of the Convention on account of an administrative practice of a lack of an effective system to opt out of Russian citizenship. Third: The Court takes note of the applicant Government’s arguments and the concerns voiced by some of the IGOs and NGOs mentioned above that the legal provisions relied on by the respondent Government were too broad and vague and therefore failed to meet the qualitative requirement of foreseeability. In this connection the Court has regard to Opinion no. 660/2011 of the Venice Commission, which expressed the view that, inter alia, the Federal Law on Combating Extremist Activity of the Russian Federation “lacks clarity”, “should be made more specific as to the procedures available” and “has the capacity [to] impos[e] disproportionate restrictions of fundamental rights and freedoms as enshrined in the European Convention on Human Rights (in particular Articles 6, 9, 10 and 11) and infringe the principles of legality, necessity and proportionality”. Those deficiencies have been relied on by the Court in finding that the Federal Law on Combating Extremist Activity was not foreseeable as to its effects and did not provide adequate protection against arbitrary recourse to the warning, caution and order procedures. Thus, even if the Russian legislation referred to could be relied on as “law” within the meaning of the relevant provision of the Convention, the Court could not regard it as sufficiently foreseeable as to its effects in so far as it concerns the allegations of arbitrary searches of private houses. Against this background, the Court finds it proven beyond reasonable doubt that during the period under consideration there existed an administrative practice of arbitrary raids and searches of private dwelling houses, which was not in “accordance with the law”. There has therefore been a violation of Article 8 of the Convention. Fourth: Alleged violation of 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. The applicant Government complained of discriminatory treatment of the Crimean Tatar population. In this connection, as noted in the admissibility decision (see Ukraine v. Russia (re Crimea), cited above, § 234), they referred to the alleged summoning of Crimean Tatars by police and the Public Prosecutor of Crimea; the initiation of criminal proceedings against Crimean Tatars; the prohibition of broadcasting of Crimean Tatar television channels; the ban on public meetings; and the interference with their freedom of movement. They also alleged that the administrative practice in violation of the freedom of movement resulting from the de facto transformation by the respondent State of the administrative border line into a State border (between the Russian Federation and Ukraine) had been particularly obstructive for Crimean Tatars, in particular representatives of the Mejlis of the Crimean Tatar People. The respondent Government did not engage with any of the other aspects of the case under this head. Nor did they submit any evidence to disprove the applicant Government’s allegations of discrimination which the latter had supported with credible evidence (. They have not provided the Court with any reason why the above evidence cannot serve to corroborate the allegations made by the applicant Government. In addition, they have not provided any, let alone a satisfactory or convincing, explanation to establish that the difference in treatment complained of had been objectively and reasonably justified by reference to a legitimate aim. Similarly, no credible or substantiated explanation has been given by the respondent Government to rebut the presumption of responsibility on the part of their authorities (or of those under their control) to account for the acts complained of. Fifth: In application no. 38334/18, the applicant Government submitted that the relocation of “Ukrainian political prisoners” to penal facilities on the territory of the Russian Federation constituted an administrative practice in breach of Article 8 of the Convention. In their memorial of 28 December 2018, within the framework of application no. 20958/14, the applicant Government submitted more generally, under the same Article of the Convention, that “a sizeable number of convicts have been transferred to the Russian Federation … transfers of pre‑trial detainees have also taken place.” Having regard to the significant overlap between the two claims of an administrative practice (see also § 446 of the admissibility decision), the Court will examine them together. aving regard to the foregoing, the Court concludes that there has been an administrative practice contrary to Article 8 of the Convention as regards the breach of the right to respect for the family life of Crimean prisoners stemming from their transfer from Crimea to penal facilities located on the territory of the Russian Federation. The Court is also satisfied that the administrative practice has continued after the allegations on this subject were raised with it on 10 August 2018 and that therefore no issue arises under the six-month rule. Sixth: Relying on Article 18 in conjunction with Articles 5, 6, 7, 8, 10 and 11 of the Convention, the applicant Government maintained that the violations complained of in relation to the “Ukrainian political prisoners” had ultimately been aimed at the intimidation of Ukrainians and the suppression of any political opposition to Russian policies. Bearing in mind the circumstances described above, the Court is satisfied that the elements of the case demonstrate not only a regular pattern of perpetration but also the existence of a continuous State policy of stifling any opposition to the Russian policies, a course of action which has been developed and publicly promoted by prominent representatives of important Russian authorities, and which thus constitutes evidence of “official tolerance”. Accordingly, the Court concludes that there has been a violation of Article 18 in conjunction with Articles 5, 6, 8, 10 and 11 of the Convention on account of an ongoing administrative practice of restricting “Ukrainian political prisoners’” rights and freedoms as enshrined in the Convention in Crimea for an ulterior purpose not prescribed by the Convention. Given that the ulterior purpose of the restrictions remained unchanged, the Court is also satisfied that no issue arises under the six-month rule. Seventh: Article 46 – In the present case, the Court reiterates its findings with regard to the violation of the right to respect for the family life of Crimean prisoners stemming from their transfer from Crimea to penal facilities located on the territory of the Russian Federation in breach of Article 8 taken alone and in conjunction with Article 18 of the Convention. In addition to this factual backdrop, the Court bears in mind as well that the Russian authorities rejected many transfer requests of those prisoners made by the Ukrainian State. In the light of its case-law set out above and having regard to the particular circumstances of the case, in particular its finding of a violation of Article 18 in conjunction with Article 8, the Court considers that the respondent State must take every measure to secure, as soon as possible, the safe return of the relevant prisoners transferred from Crimea to penal facilities located on the territory of the Russian Federation. |
| Other Article violation? | Art 33 • Inter-State application • Administrative practices by Russia predominantly in Crimea resulting in multiple Convention violations Art 2 (substantive and procedural) • Life • Administrative practice of enforced disappearances and lack of effective investigation into credible allegations of such practice • Court’s examination of complaint not limited to individuals unaccounted for • Applicability of Art 2 engaged regardless of the release of most of those abducted Art 3 (substantive and procedural) • Torture • Inhuman and degrading treatment • Administrative practice of ill-treatment of Ukrainian soldiers, ethnic Ukrainians, Crimean Tatars and journalists • Administrative practice of ill-treatment of “Ukrainian political prisoners” both in Crimea and the Russian Federation and lack of effective investigation • Degrading conditions of detention of “Ukrainian political prisoners” in the Simferopol SIZO in Crimea • Systemic problem resulting from overall shortcoming in organisation and functioning of Crimean prison system Art 5 • Lawful arrest or detention • Administrative practice of unacknowledged and incommunicado detention of Ukrainian soldiers, ethnic Ukrainians, Crimean Tatars and journalists Art 5 • Art 7 • Ongoing administrative practice of unlawful deprivation of liberty, prosecution and/or conviction of “Ukrainian political prisoners” based on application of Russian law in Crimea • Retroactive application of criminal law and extension of criminal-law provision in an unforeseeable manner by the courts in Crimea Art 6 • Tribunal established by law • Wholesale application of Russian law in Crimea after its admission to the Russian Federation, in breach of the Convention as interpreted in the light of International Humanitarian Law • General and wholesale replacement of Ukrainian law • Courts in Crimea not “established by law” Art 8 • Private life • Administrative practice of preventing permanent citizens of Crimea from effectively being able to opt out of Russian citizenship Art 8 • Private life • Family life • Home • Administrative practice of unlawful and arbitrary raids and searches of private houses Art 8 • Family life • Administrative practice of unlawful transfers of Crimean prisoners to penal facilities located on Russian territory Art 9 • Freedom of religion • Administrative practice of unlawful harassment of religious leaders not conforming to the Russian Orthodox faith, arbitrary raids of places of worship and confiscation of religious property • No legitimate aim or justification provided Art 10 • Freedom of expression • Administrative practice of unlawfully suppressing non-Russian media, including closure of Ukrainian and Tatar television stations • Administrative practice not “necessary in a democratic society” Art 11 • Freedom of peaceful assembly • Freedom of association • Administrative practice of unlawfully prohibiting public gatherings and manifestations of support for Ukraine or the Crimean Tatar community as well as intimidation and arbitrary detention or organisers of demonstrations • Administrative practice not “necessary in a democratic society” Art 10 • Art 11 • Administrative practice of unlawful deprivation of liberty, prosecution and/or conviction of “Ukrainian political prisoners” for exercising their freedom of expression, of peaceful assembly and association Art 1 P1 • Deprivation of property • Administrative practice of unlawful large-scale expropriation (nationalisation) of property belonging to civilian and private enterprises in Crimea, entailing a conclusive transfer of ownership without compensation • Impugned deprivations disproportionate Art 2 P1 • Right to education • Administrative practice of suppression of the Ukrainian language in schools and persecution of Ukrainian-speaking children at school • Denial of substance of the right to education Art 2 P4 • Administrative practice of unlawfully restricting the freedom of movement between Crimea and mainland Ukraine resulting from the de facto transformation by the respondent State of the administrative border line into a State border between the Russian Federation and Ukraine Art 14 (+ Art 8, 9, 10, 11 and Art 2 P4) • Discrimination • Lack of objective or reasonable justification for discriminating against Crimean Tatars Art 18 (+ Art 5, 6, 7, 8, 10 and 11) • Restrictions for unauthorised purposes • Art 18 not applicable in conjunction with Art 7 in view of that provision’s non-derogable nature (incompatible ratione materiae) • Art 18 applicable in conjunction with Art 5, 6, 8, 10 and 11 • Administrative practice of restricting the “Ukrainian political prisoners’” rights and freedoms with predominant ulterior purpose of punishing and silencing any political opposition • Continuous State policy, developed and publicly promoted by prominent representatives of important Russian authorities, of stifling any opposition to Russian policies • Pattern of retaliatory prosecution, misuse of criminal law and general crackdown on political opposition to Russian policies in Crimea Art 38 • Non-compliance with State obligation to furnish all necessary facilities Art 46 • Execution of judgment • Individual measures • Respondent State to take measures, as soon as possible, to secure the safe return of the prisoners concerned transferred from Crimea to penal facilities located on the Russian Federation’s territory |
| Damage awarded | Holds that the question of the application of Article 41 of the Convention is not ready for decision; accordingly, (a) reserves the said question in whole; (b) invites the applicant Government and the respondent Government to submit in writing, within twelve months from the date of notification of this judgment, their observations on the matter and, in particular, to notify the Court of any agreement that they may reach; |
| Documents | Judgment |