A Thorny Road to Democracy, Human Rights and the Rule of Law: Ukraine and the European Court of Human Rights (original) (raw)

Applying the European Convention on Human Rights to the Conflict in Ukraine

The ‘annexation’ of Crimea by the Russian Federation and the ongoing conflict in Eastern Ukraine have resulted in widespread human rights abuses. Both Ukraine and the Russian Federation are signatories to the European Convention on Human Rights and the Convention should apply within the territory and to the conflict. However, recent applications to the European Court of Human Rights reveal a great deal of confusion over which State bears responsibility for protecting human rights in different parts of Ukraine. This article seeks to shine a light on this problem presenting a deep analysis of the European Court of Human Rights’ jurisprudence and discussing how it applies to both the conflict in Eastern Ukraine and ‘annexed’ Crimea. It addresses a number of salient issues such as whether either State bears responsibility for the actions of non-state actors and armed groups in Eastern Ukraine and whether the legality of the ‘annexation’ has any bearing on the human rights obligations of each State? The article presents a detailed critique of recent judgments from the European Court of Human Rights arguing that the jurisprudence of the Court has created a bewildering degree of complexity and uncertainty as to the obligations of each State and discussing the practical implications of this uncertainty.

Cases of the European Court of Human Rights significant for European integration of Ukraine: “Maidan judgments” concerning Ukraine, of 21 January 2021 (final on 21 April 2021)

NaUKMA Research Papers. Law

The present case commentary is focused on cases concerning the so-called Maidan events of 2013-2014. The commentary suggests that the cases at issue underline existence of the long-standing systemic and structural problems within the domestic legal system of Ukraine, which need to be resolved, notably in order to harmonise the legislative and institutional framework of protection of human rights with the requirements of the European human rights law, which incorporates both the European Convention of Human Rights and the EU Charter of Fundamental Rights. The cases touch upon a number of previously deficient legislative provisions and institutional practices. However, most importantly they underline the need to adopt legislation to regulate and ensure protection of freedom of association. Such demand is clearly ensuing from the case-law of the Court and its findings in specific cases as to the lack of coherent legislative framework for this right. The extensive Council of Europe expe...

European Standards of Human Rights in the Practice of the Constitutional Court of Ukraine

Social Legal Studios

The article is devoted to the retrospective analysis of some aspects of the application and implementation of European human rights standards in the constitutional proceedings of Ukraine. It is substantiated that the domestic body of constitutional jurisdiction, realizing its role as an instrument for implementing European human rights standards in national legal practice, actively uses the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the Strasbourg Court as arguments to motivate its decisions. In the future, not only the formal but also the substantive aspect of the use of the Convention and the case law of the European Court of Human Rights in the acts of the Constitutional Court of Ukraine certainly needs special attention. The following analysis will allow to reveal the "quality" of the reference to these international sources and the relevance of references to them. In the motivating part of its decisions, the Constitution...

Where is the European Court of Human Rights Heading? Comments on the Grand Chamber Admissibility Decision in the Case of Ukraine v. Russia (re Crimea) (Applications No. 20958/14 and 38334/18)

Polish Review of International and European Law , 2021

The aim of this article is to analyse the European Court of Human Rights (hereinafter: the Court) decision on admissibility in the Ukraine v. Russia (re Crimea) case from the perspective of the Court's comments on the status of Crimea and the legality of Russia's actions. The Court itself observed that it cannot make such findings; nevertheless, did it really refrain from examining facts and evidence which could also be used to prove the illegality of Russian actions? The article is divided into four parts. The first presents the factual background of the case. The next highlights the Court's declarations about the scope of the case and refusal to engage in assessment of the legality of Russian actions. The third and fourth parts focus on the Court's examination of the effective control by Russia over Crimea and the issue of jurisdiction, assessing whether the Court limited itself solely to the issues indispensable for a decision on admissibility.

Bringing Human Rights Home: The Challenge of Enforcing Judicial Rulings in Ukraine and Russia

Indiana International & Comparative Law Review, 2014

The problem of systemic non-enforcement of judicial decisions, the Ukrainian government's failure to respond to a pilot judgment, and Russia's legislative reform offer important case studies for both rule of law development in the post-Soviet sphere and the efficacy of the European human rights system. This article looks at systemic non-enforcement both as a domestic and international challenge. It first examines Ukraine's history with the European Court of Human Rights and the response to the Ivanov v. Ukraine 1 pilot judgment. It unpacks the factors that are responsible for persistent non-enforcement and for preventing domestic reform. It then turns to Russia, and explores the European Court of Human Rights' pilot judgment in the case Burdov v. Russia (no. 2), 2 the Russian response, and implementation of the subsequent reforms. Lastly, the article examines the significance and implications of these cases for the European human rights regime.

Human rights in Ukraine and the EU response, including relevant activities of the European Parliament

The present study provides an overview of how the European Union and the European Parliament (EP) contribute to the promotion and protection of human rights in Ukraine. The analysis adopts an institutional approach, separately addressing the role of the various EP bodies involved, such as the plenary itself and the Subcommittee on Human Rights (DROI). The actions of the EU-Ukraine Parliamentary Association Committee (PAC), a parliamentary body created by the Association Agreement, as well as those of the European Parliament’s Delegation to the PAC are included in this analysis. The territories controlled by the Ukrainian government and those that are temporarily occupied, namely Crimea and parts of eastern Ukraine, are addressed separately in the study. In terms of thematic focus, the EP’s activities aimed at human rights promotion have been dominated by the issue of the Crimean Tatars, the Ukrainian political prisoners illegally held in Russia, and the human rights situation in eastern Ukraine. The most significant conclusion is that the more entrenched the violation of Ukraine’s territorial integrity becomes, the wider the spectrum of human rights issues extends, in protection of which the EP is able to step to the fore and take action. A summary of the contents of relevant EP actions can be found in the Annex to the study, together with a graphical visualisation of key data.

The role of the ECHR and other human rights bodies during the Ukrainian conflict, its eventual settlement and aftermath

2017

The present research looks into the inter-state and quasi-inter-state cases examined by the European Court of Human Rights (“the Court”) linking them with the context of Ukrainian conflict in Crimea and its Eastern part. It puts emphasis on the challenges that the Court has met in its previous cases, from the perspective of the States in dispute, and wonders on the outcomes of the Ukrainian inter-State and quasi-inter-State pending litigations. The paper observes briefly the executional perspectives and, finally, proposes some short-term scenarios of how these litigations may evolve. It starts by a general introduction into the contexts and developments of inter-state and quasi-interstate adjudication under the European Convention on Human Rights (“the Convention”), underlining in particular aspects relevant for the pending Ukrainian disputes. Then it outlines the general question of extraterritorial States’ jurisdiction and the Court’s specific interpretation from the Convention Human Rights Law perspective, in comparison to general meaning as given by other international adjudication bodies. All relevant elements from both summaries are supported by the Court’s case-law leading cases. Turning to the Ukrainian conflict situation, the paper surveys landmark Convention cases concerning the so-called “frozen conflicts”, reflecting rather the Court’s reasons between the lines and behind its official rulings; what tactic the Court usually employs dealing with the inter-States disputes and how these cases have been evolved so far under the Convention mechanism, including their execution stage. The paper will list similar zones with “on-going” and/or “frozen conflicts” that already gave raise to systemic problems and massive violations leading to multiple cases being brought before the Court (such as the Transnistrian region of the Republic of Moldova; the Nagorno-Karabakh region of Azerbaijan and its conflicting jurisdiction with Armenia; the Northern Cyprus region and the extensive jurisdiction of Turkey, as well as Abkhazia and South Ossetia, conflictual zones of Georgia). The author assesses how the autonomous interpretation of the jurisdiction under the Court’s case-law has been applied to all these cases and, therefore, what are the effects in terms of the state’s positive or negative obligations under the Convention in these zones. Then, the paper will illustrate types of cases and applications coming from conflictual zones, in particular inter-State cases and individual applications, which may become quasi-inter-States disputes. In the end, the present paper dares to make some assumptions concerning a potential development of the Ukrainian human rights complaints brought before the Court (be that inter-State or quasi-inter-State cases). It will be mainly a hypothetical exercise and speculative scenario, which however will be construed on the above research and overview of the previous cases. It will refer solely to the on-going international disputes over the Crimea region and military conflicts in the Eastern regions of Ukraine, from jurisdictional perspective of both States in dispute. However, no valuable predictions will be possible concerning the merits of the Ukrainian cases and the executional reaction, though some general ideas and examples will be mentioned.

The right to a justice court: implementation of the practice of the European Court of human rights in the Ukrainian judiciary

Linguistics and Culture Review, 2021

The purpose of this study is to reveal the content of the right to a fair trial and the state of its provision in Ukraine through the prism of court decisions of Ukrainian courts of various instances and the relevant practice of the European Court of Human Rights. The methodological basis of the study is a set of philosophical and ideological, general and special scientific methods and techniques of scientific knowledge, including dialectical, systemic, structural and functional methods, as well as methods of analysis and synthesis. It is identified that the right to a fair trial in legal science, judicial practice is considered in its constituent elements and relevant manifestations, including fairness and publicity of the trial, compliance with the signs of independence, impartiality, legality, observance of the rule of law, equality of participants, and proceedings within reasonable time limits. Each of the elements, mentioned and features of the right to a fair trial is subject ...