Religion – Weltanschauung – Recht [ RWR ]

The case of Ukraine v. Russia (re Crimea) (applications nos. 20958/14 and 38334/18) concerned Ukraine’s allegations of a pattern (“administrative practice”) of violations of the European Convention on Human Rights by the Russian Federation in Crimea beginning in February 2014. It also concerned allegations of a pattern of persecution of Ukrainians for their political stance and/or pro-Ukrainian activity (“Ukrainian political prisoners”) which had occurred predominantly in Crimea but also in other parts of Ukraine or in the Russian Federation since early 2014.

The Ukrainian Government alleged that those human-rights violations had been part of a campaign of repression, which included in particular disappearances; ill-treatment; unlawful detention; impossibility to opt out of Russian citizenship; suppression of Ukrainian media and of the Ukrainian language in schools; pre-trial detention in overcrowded conditions; prosecution and conviction on fabricated charges without a fair trial in reprisal for any pro-Ukrainian stance; and, transfers from Crimea to prisons in Russia.

In today’s Grand Chamber judgment in the case the European Court of Human Rights held, unanimously, that there had been:

violations of Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair trial), 7 (no punishment without law), 8 (right to respect for private and family life), 9 (freedom of religion), 10 (freedom of expression), 11 (freedom of assembly), 14 (prohibition of discrimination) and 18 (limitation on use of restrictions on rights) of the European Convention on Human Rights, and Article 1 of Protocol No. 1 (protection of property), Article 2 of Protocol No. 1 (right to education) and Article 2 of Protocol No. 4 (freedom of movement) to the European Convention.

It also held, unanimously, that the Russian Federation had failed to comply with its obligations under Article 38 (obligation to furnish necessary facilities for the examination of the case) of the Convention.

Lastly, the Court held, unanimously, under Article 46 (binding force and implementation of judgments), that Russia had to take measures as soon as possible for the safe return of the relevant prisoners transferred from Crimea to penal facilities located on the territory of the Russian Federation.

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The Court considered that it had sufficient evidence – in particular intergovernmental and nongovernmental organisation reports, corroborated by witness testimony and other material – to conclude beyond reasonable doubt that the incidents had been sufficiently numerous and interconnected to amount to a pattern or system of violations. Moreover, the apparent lack of an effective investigation into the incidents and/or the general application of the measures to all people concerned, among other things, proved that such practices had been officially tolerated by the Russian authorities.

It emphasised that such practices had taken place within the context of the full-scale application of Russian law in Crimea. That situation was in breach of international humanitarian law (IHL) which provided that there was an obligation to respect the laws already in force on occupied territory, which in this case would have been the pre-existing Ukrainian law. Confirming that IHL was to be taken into account in its assessment of the case, it found that Russia had extended the application of its law to Crimea in breach of the Convention.

Lastly, it found that there had been a pattern of retaliatory prosecution and misuse of criminal law and a general crackdown on political opposition to Russian policies in Crimea, which had been developed and publicly promoted by prominent representatives of the Russian authorities.

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Ukraine has four inter-State cases pending against Russia, including one jointly with the Netherlands, and there are approximately 7,400 individual applications pending before the Court concerning the events in Crimea, eastern Ukraine and the Sea of Azov, as well as Russia’s military operations on the territory of Ukraine since 24 February 2022.

Principal facts and complaints

This inter-State case concerned mostly events in Crimea, which includes the Autonomous Republic of Crimea (the “ARC”) and the City of Sevastopol.

The Ukrainian Government maintained that the Russian Federation had been responsible for a pattern (“administrative practice”) of human-rights violations under the Convention from 27 February 2014, the date from when they alleged that Russia exercised extraterritorial jurisdiction over Crimea. They argued that that pattern of violations was part of a large, interconnected campaign of political repression aimed at stifling any opposition.

Application 20958/14 specifically covered the following complaints: enforced disappearances and the lack of an effective investigation; ill-treatment and unlawful detention; extending the application of Russian law to Crimea with the result that as from 27 February 2014 the courts in Crimea could not be considered to have been “established by law” within the meaning of the European Convention; impossibility to opt out of Russian citizenship and raids of private dwellings; harassment and intimidation of religious leaders not conforming to the Russian Orthodox faith, arbitrary raids of places of worship and confiscation of religious property; suppression of non-Russian media; prohibiting public gatherings and manifestations of support for Ukraine or the Crimean Tatar community, as well as intimidation and arbitrary detention of organisers of demonstrations; expropriation without compensation of property from civilians and private enterprises; suppression of the Ukrainian language in schools and harassment of Ukrainian-speaking children at school; restriction of 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); and, targeting of and discrimination against Crimean Tatars.

In application no. 38334/18 the Ukrainian Government complained of various instances of unlawful deprivation of liberty, prosecution, ill-treatment and convictions of Ukrainians for their political stance and/or pro-Ukrainian activity in Crimea since early 2014. They maintained that “after the occupation” the local authorities in Crimea had used Russian legislation against extremism, separatism and terrorism to detain Crimean Tatar and Ukrainian activists. In addition, a number of Ukrainians had been captured by the Russian proxies of “Luhansk people’s republic” and “Donetsk people’s republic” and handed over to the Russian authorities for prosecution. Lastly, a number of Ukrainians had been lured by the Russian authorities to Russia, Russian-controlled territory or Belarus, or had entered Russia for various lawful purposes, and had then been detained, tortured for confessions and sentenced by the Russian courts for committing fabricated offences. According to the applicant Government, these individuals were “political prisoners” and numbered at least 71 in June 2018 and 203 in December 2022. The Ukrainian Government argued that the alleged violations in relation to these “Ukrainian political prisoners” had ultimately been aimed at the intimidation of Ukrainians and the suppression of any political opposition to Russian policies.

Some of the complaints raised in both applications overlapped (regarding the system of opting out of Russian citizenship and the transfers of prisoners from Crimea to the territory of the Russian Federation), while others concerned some of the same events or individuals.

In both applications the Ukrainian Government cited a number of individuals, and witness statements, to illustrate the alleged pattern of violations. These individuals included among others Ukrainian military personnel, pro-Ukrainian and Euromaidan activists, protestors, journalists, writers, a film director (Oleg Sentsov), religious figures (in particular the Metropolitan Kliment of Simferopol and Crimea of the Orthodox Church of Ukraine), priests, Crimean Tatars and Muslims living in Crimea. The Government also referred to intergovernmental reports (in particular a report from 2017 by the Office of the United Nations High Commissioner for Human Rights – the “2017 OHCHR report” and another from 2023 by the Council of Europe’s Commissioner for Human Rights entitled “Crimean Tatars’ struggle for human rights”), reports by non-governmental organisations, other international material and documents provided by the Ukrainian authorities.

In their written submissions, the Russian Government either contested the allegations of the pattern of violations, which they argued were vague and unsubstantiated with little if no recourse to legal avenues at national level having been made, or did not submit any evidence or information at all, notwithstanding the Court’s requests in this respect. As concerned the complaints about the judicial system in Crimea since 27 February 2014, they referred to the relevant laws and legal instruments on the basis of which Crimea had been admitted, as a matter of the Russian law, as a constituent entity, into the Russian Federation. They identified in particular the so-called “Accession Treaty”, signed on 18 March 2014 when the “Republic of Crimea” and the City of Sevastopol became a part of Russia, federal laws, the Constitution and the relevant legislation and statutory provisions of the Russian Federation. They argued therefore that any measures taken were an integral part of Russia’s legal system, which was in full compliance with the European Convention. As concerned the system of opting out of Russian citizenship, they submitted that there was a clear and reasonable procedure to opt out.

In both applications the Ukrainian Government relied on Articles 3, 5, 6, 8, 10 and 11. In application no. 20958/14 they also complained under Articles 2, 9 and 14, and Article 1 of Protocol No. 1, Article 2 of Protocol No. 1 and Article 2 of Protocol No. 4. In application no. 38334/18 they further relied on Articles 7 and 18.

Procedure and composition of the Court

Application no. 20958/14 originated in two applications lodged on 13 March 2014 and 26 August 2015, respectively, which were joined in 2018 under the said number. Application no. 38334/18 was lodged on 10 August 2018.

On 7 May 2018 the Chamber dealing with application no. 20958/14 relinquished jurisdiction in favour of the Grand Chamber.

In its decision of 16 December 2020, the Court declared application no. 20958/14 partly admissible. It also decided to give notice to the Russian Government of the complaint in that application concerning the alleged transfer of Ukrainian “convicts” from Crimea to the territory of Russia. Moreover, given the overlap of that complaint with application no. 38334/18, which concerns “Ukrainian political prisoners”, it decided to join the latter application to the former and to give notice of it to the Russian Government.

Two hearings have been held in the case, on 11 September 2019 and 13 December 2023. In the first hearing the Court examined the admissibility of application no. 20958/14, while in the second it examined the merits of the complaints already declared admissible and the admissibility and merits of the “Ukrainian political prisoners” application (no. 38334/18) and the transfers of “convicts” complaint (both applications).

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Síofra O’Leary (Ireland), President,

Georges Ravarani (Luxembourg),
Marko Bošnjak (Slovenia),
Gabriele Kucsko-Stadlmayer (Austria),
Pere Pastor Vilanova (Andorra),
Arnfinn Bårdsen (Norway),
Krzysztof Wojtyczek (Poland),
Faris Vehabović (Bosnia and Herzegovina),
Stéphanie Mourou-Vikström (Monaco),
Tim Eicke (the United Kingdom),
Lətif Hüseynov (Azerbaijan),
Jovan Ilievski (North Macedonia),
Gilberto Felici (San Marino),
Erik Wennerström (Sweden),
Ioannis Ktistakis (Greece),
Diana Sârcu (the Republic of Moldova),
Mykola Gnatovskyy (Ukraine),

and also Søren Prebensen, Deputy Grand Chamber Registrar.

Decision of the Court

Overall conclusions

Firstly, the Court reiterated its finding at the admissibility stage as concerned application no. 20958/14 that Russia had exercised extraterritorial jurisdiction over Crimea between 27 February 2014, the date from when Russia had had “effective control”, until 26 August 2015, the date of lodging of their second application (regarded as the “period under consideration” in so far as application no. 20958/14 was concerned). As there had, in the meantime, been no relevant information to contradict that conclusion, the Court found that it continued to be valid after 26 August 2015 in respect of events which had occurred in Crimea relevant for application no. 38334/18.

It also established that it had jurisdiction to deal with the Ukrainian Government’s complaints in both applications in respect of facts that had taken place before 16 September 2022, the date on which Russia ceased to be a contracting Party to the European Convention. As concerned application no. 38334/18 it considered that it had jurisdiction beyond 16 September 2022 for detention which had started before that date.

It then clarified another decisive issue in the case, notably that Russian law could not be regarded as “law” for measures taken in Crimea within the meaning of the Convention, interpreted in the light of international humanitarian law (IHL). Both parties pointed to the wholesale application of Russian law after 18 March 2014 (date of signature of the “Accession Treaty”). However, the relevant rules of IHL clearly provided that there was an obligation to respect the laws in force in the “occupied” territory “unless absolutely prevented”. Confirming that IHL was to be taken into account in its assessment of the case, it therefore found that Russia had unjustifiably extended the application of its law to Crimea in breach of the Convention.

It went on to note that the Ukrainian Government’s complaints came under the concept of an “administrative practice” of human-rights violations, as outlined in the early inter-State cases, the admissibility decision in the present case, and most recently in the decision in Ukraine and the Netherlands v. Russia. This concept means the “repetition of acts incompatible with the Convention” and an element of “official tolerance” by the respondent State. It emphasised that it was particularly difficult to clarify such important issues and to establish the facts in a case concerning a great number of people and events over a significant period of time and a vast geographical area (Russia and Crimea), with no cooperation from the respondent Government since the submission of its memorial in February 2022 and denial of access to Crimea to Ukrainian officials and/or independent monitoring. Such a lack of participation had been prejudicial for the Court’s examination of the case, in breach of the Russian Government’s obligations under Article 38 of the Convention.

The Court noted that it could draw all the inferences that it deemed appropriate from that situation, but pointed out that it had to be satisfied on the basis of the available evidence that the claims had been well-founded in fact and in law. It thus carefully analysed the facts established in various sources of evidence – in particular material originating from intergovernmental organisations and non-governmental organisations and first-hand witness testimony – submitted by the Ukrainian Government.

On that basis and in respect of each of the complaints outlined below, it found that the incidents had been sufficiently numerous and interconnected to amount to a “repetition of acts”. Moreover, taking into account the apparent lack of an effective investigation into the incidents and/or the general application of the measures to all people concerned, the Court considered that the “official tolerance” element had also been established beyond reasonable doubt. Accordingly, it found that the respondent State had been responsible for a pattern or system (“administrative practice”) of violations of the Convention.

Specific findings on the pattern of violations in both applications

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Specific findings on the pattern of violations (application no. 20958/14) from 27 February 2014 to 26 August 2015

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Violation of Article 9 (freedom of religion). The Court noted that multiple IGO reports, backed up by NGO reports, the Ukrainian authorities and individual witnesses (most notably the Metropolitan Kliment), consistently confirmed the allegations of harassment and intimidation of religious leaders not conforming to the Russian Orthodox faith (in particular Ukrainian Orthodox priests and imams), arbitrary raids of places of worship and confiscation of religious property. Specifically, churches of the Ukrainian Orthodox Church of the Kyiv Patriarchate had been seized, closed or stormed; priests had been banned from entering the churches; residence permits for foreign religious leaders (23 Turkish imams and a Roman Catholic priest) had not been renewed; eight out of the ten Muslim religious schools (madrassas) had been raided and searched; a mosque had been set on fire; and, a Muslim cemetery had been damaged. Such incidents had led to the over 2,000 religious organisations operating in Crimea and Sevastopol before February 2014 declining to just over 800 as of September 2017, statistics confirmed by the Russian Government itself. The material available showed that those responsible for the incidents had been “armed and masked members of the security forces”, FSB officers, Cossacks, the CSDF or “local pro-Russian militia”. The interferences with the right to religious freedom had been unlawful, and the respondent Government had provided no legitimate aim or justification for them.

Specific findings on the pattern of violations (application no. 34338/18)

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Article 41 (just satisfaction)

The Court held that the question of just satisfaction was not ready for decision.

Article 46 (binding force and implementation)

Lastly, the Court held that Russia had to take measures to ensure, 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.

Press release ECHR 166 (2024) 25.06.2024