The trial of Russia

What does Kyiv count on when he filed lawsuits against Moscow to international courts?

Vitaliy Portnikov: Ukraine has various claims against Russia related to various aspects of legal, and not just a power confrontation between the two countries, and this has already become a fact that was repeatedly discussed in the media of the two countries. How real is the Ukrainian hopes that Russia can win in international courts? This is what we will talk about with our guest today, Deputy Minister of Justice of Ukraine, government authorized by the European Court of Human Rights by Ivan Lishchina .

What do you count on when you are presenting all these claims? After all, as I understand it, the European Court of Human Rights and other instances is a very long process. What can Ukraine win in Russia in this process if all this will reach for months, years and, perhaps, end when the conflict itself is exhausted?

The European Court looks at the root, at actual circumstances, and not at the legal husk

Ivan Leshchina: This is undoubtedly possible, although we, for our part, make every effort to speed up the process. In any case, from the point of view of the European Court, the approach of the court itself to such disputes is very important when one state, a participant in the European Convention on Human Rights , occupies part of the territory of another participant in the European Convention. This is not the first case in the practice of the European Court.

What is important to the European court: he looks into the root, at the actual circumstances, and not at the legal husk. He does not look at the fact that, for example, Russia can say that it recognizes some territory by an independent state (for example, Abkhazia, Ossetia, and so on). The European court will not look at the fact that Russia will announce that some kind of popular plebiscite about joining its territory, it will look into the root, namely: whether there are military units of the Russian Federation in a certain territory, when they appeared there what they did and controlled the local administration there. In the presence of these criteria (troops, control over the local administration), the European court concludes that it is precisely the state that controls this territory through its military force that is responsible for violations of human rights in this territory. It is very important for us to establish this moment, the moment of jurisdiction of the Russian Federation over the so -called DPR and LPR and the Crimea, starting on February 26, 2014, and not from March 21, 2014, as Russia itself is recognized.

Vitaly Portnikov: As I understand it, we are talking literally about days.

Ivan Leshchina: But these are very important days. It was on these days that massive violations of human rights took place: there were mass abductions of Ukrainian military and activists, murder, torture, violations of the right to association, and so on. That is, it was these days that absolutely incredible events took place, which are hardly perceived by a civilized mind. Nevertheless, they took place, and we argue that the occupation of the Russian Federation of this territory of Crimea was to blame for everything.

Vitaly Portnikov: That is, you want to say that from the moment Crimea proclaimed its conditional sovereignty (has not yet proclaimed but lost Ukraine’s control over the Crimea), and until the moment Crimea was officially recognized as the territory of the Russian Federation, is this a time of complete lawlessness?

Absolutely incredible events took place these days, and the reason for everything was the occupation of Russia of the territory of the Crimea

Ivan Leshchina: Yes. Formally, something happened, some decisions were made, documents ... Nevertheless, we argue that the cause of violations of human rights that we are talking about was the Russian occupation. The European Court does not operate in the word “occupation”, it operates with the expression “effective general control”. We argue that this “effective general control” was established by the Russian Federation, starting on February 26, after the Verkhovna Rada of the Autonomous Republic of Crimea was captured, and under the muzzle of machine guns voted for the election of Aksenov.

Vitaly Portnikov: But the Russian Federation itself does not very much deny its presence. The “polite green men” first said that these were not regular units of the Russian army, and then Vladimir Putin himself said in the famous documentary about Crimea: well, there were our troops - what, did you want them to be there? They ensured order, helped to conduct an honest referendum. This was said by the first person of the state - what to prove here?

Ivan Leshchina: In this regard, Russians have a very difficult position, because the presence of troops and their participation in the rejection of Crimea from Ukraine was actually indeed recognized by Vladimir Putin himself. Interestingly, in legal correspondence on this dispute, the Russian side quoted precisely this phrase of Vladimir Putin. This is the first time I see a quote from a politician as a legal argument.

On the other hand, Russia is trying to cover itself with its constitutional law, as a fig leaf. They are very afraid to move away from formal moments, because it is worth the court to get away from formal moments, and a whole layer of violations related to the Russian Federation itself is revealed, not only in the Crimea, but also in the Donbass. It is very important for them to prove that the court must follow the formal moments within the framework of the Russian legal system, that only from the moment when the Constitutional Law on the accession of Crimea entered into force, that is, from March 21, Russia is responsible.

Russia is trying to hide behind its constitutional law, like a fig leaf

At the same time, they have a complete covers with legal justifications. They themselves admit that the Crimean administration was integrated into the Russian administration, starting on March 18. At the same time, the “contract” between the Republic of Crimea and the Russian Federation on the accession entered into force on April 1, but the law that entered into force on March 21 refers to it. They say: we integrated Crimea on March 18, but we admit that we are responsible for it only from March 21. That is, it is generally not clear what happened for three days. If you read their own documents, it turns out that the contract, on the basis of which they attached Crimea, entered into force after they attached it.

Vitaly Portnikov: Can it be?

Ivan Leshchina: No, of course.

Vitaly Portnikov: It was such a legal subtlety so as not to change the law itself on the accession of territories to the Russian Federation, because, as I understand it, someone else's territory cannot be connected to it without the consent of the state, which this territory is included. Therefore, Crimea was recognized as an independent state, and an independent state can do anything. So, I want to understand when, from a Russian point of view, this independent state ceased to exist?

Ivan Leshchina: It's hard for me to say this too. This is a complete legal nonsense, which, nevertheless, is very important for us, because it shows the lack of communication between legal points and the real situation in the Crimea. In fact, nothing changed on the 17th, on the 20th, 22nd, the same thing happened: the Ukrainian military units were blocked in the same way, the abductions of activists took place in the same way, and radio stations and public organizations stormed in the same way. All this inconsistency in legal documents, which looks a little ridiculous, is actually important, because it shows that all this was just an attempt to legalize the existing situation, which, as we say, began to exist on February 26, 2014.

Ivan Leshchina

Vitaly Portnikov: Here in the Crimea there is a district or city court, it has a judge, the composition of the court. In this court lies the Code of Criminal Procedure of Ukraine. They have been working under this legislation, and have been working on it not since 1991, but since 1954, because in the Soviet Union the codes in the republics have been different, sometimes they were significantly different in articles, according to sentences, as definitions. There were different definitions of the supreme courts of the Ukrainian SSR and the RSFSR.

It is clear that there was a common system, but in some small things to people who graduated from the Law Faculty in Kyiv, it was not so easy to work in Moscow, and vice versa. And then a man sits, he has a Ukrainian legal education, he judges by Ukrainian laws, and what does he do since February 26?

Judges in Crimea had big problems, they had to invent a lot

Ivan Leshchina: On February 26, they continued to use Ukrainian symbols and legislation. Since March 21 ...

Vitaly Portnikov: Other codes came on March 21?

Ivan Leshchina: The judges in the Crimea had big problems, they had to come up with a lot. We saw, for example, documents with the emblem of Ukraine, with a trident, but written by the “name of the Russian Federation”, or “the name of the Republic of Crimea”, or is generally incomprehensible by whose name.

Vitaly Portnikov: Do these documents have legal significance?

Ivan Leshchina: No, of course, do not. Yes, indeed, from some point they begin to judge by Russian law. I used to work as a lawyer and represented, inter alia, in the European court on behalf of the victims from the Russian occupation. In particular, we represented the Crimea Foundation, Majlis : I saw these documents, they were written very clumsy. It was clearly very inconvenient to use the legislation of the Russian Federation, they did not give any justification, because they did not know how to do it. There was a quote from the law and further - the conclusion without any explanation of how they can be interconnected at all. All these documents are legally insignificant.

Vitaliy Portnikov: Do you admit that since March 21, 2014, the legal field of the Russian Federation is still operating in Crimea, or not? What happens from the point of view of Ukrainian law, from March 21, 2014?

Ivan Leshchina: From the point of view of the European Convention on which I now work, the following is happening: the occupation power has established certain rules on this territory, and it is the occupation power that is responsible for observing human rights. And we monitor how constantly violated the human rights in this territory, and submit the appropriate complaints to the European Court, complain about Russia, which occupied part of our territory. Whether the Russian, Somali or any other right is valid there, it is important for us that the rights of our citizens are violated.

Vitaly Portnikov: I remember very well what happened in 1991 in the Baltic countries. Even the Soviet Union admitted that these countries were occupied, their independence was restored within the framework of states that were liquidated by the Soviet invasion in 1940. And - it was a completely amazing, unprecedented thing - everything rolled back by 1940. The issues of citizenship, property, responsibility of various organizations that existed then returned property not only to persons and organizations.

Here we are discussing the issues of de -Ukrainian discovery. It is clear that from the point of view of international law it will come sooner or later, and everything will roll back on March 21, 2014: property issues, real estate transactions, and issues of citizenship of persons who live in the territory of Crimea. After all, there now a large number of so -called colonists are added to Ukrainian citizens, that is, citizens of the Russian Federation who come there, receive registration, but, in principle, have nothing to do with Ukraine and cannot claim its citizenship. How is it all physically possible?

The occupation power has established certain rules on this territory, and it is it that is responsible for observing human rights

Ivan Leshchina: I have no answer to this question. This is not only legal, but more political. As an answer, I can give an example of Alsace and Lorraine, that is, the territories that were constantly located between France and Germany were constantly the subject of territorial disputes between these two states. Each of the states, which took turns occupied this territory, did everything in order to attract citizens living on it to their side. Accordingly, the legislation, which was in favor of these citizens, remained in force in these territories. For example, now it is French territory, these are two areas of France, and there is an employment legislation adopted in the days of the German Empire: it is very pro -social, and France upheld these laws.

Moreover, only in these regions does Napoleon's legislation apply on public organizations. The Germans came and left him in force, and the French came and upheld what was under the Germans. Thus, this is a very attractive place for investment, because it really has retained some elements of the old legislation that act in favor of citizens. I would take into account such an experience.

Vitaliy Portnikov: Do not these claims allow the European Court of Human Rights to look for a future legal system?

Ivan Leshchina: They relate to specific cases of human rights violations, which are now allowed by the Russian Federation. Once, probably, they will influence some extent. For example, in terms of these claims, we are talking about a violation of ownership of our citizens and legal entities in the territory of Crimea. It seems to me that there is some strange quasinationalization in favor of Aksenov.

Vitaly Portnikov: He needs to live for something.

In terms of claims, we are talking about a violation of the ownership of our citizens and legal entities in the territory of Crimea

Ivan Leshchina: Some incomprehensible legislation on nationalization, under which not only state property and property of the Autonomous Republic of Crimea falls, which would be illegal, but logical, but also private businesses. Of course, we will submit this as an example of a violation of property rights. Apparently, the results of nationalization ... And perhaps after nationalization a new privatization will pass, its results will not be recognized ...

On the other hand, if the purchases will occur without violence, if some Russian came to this territory and bought some property from the Crimean, then I will not even say how Ukrainian legislation will be reacted after Crimea is reintegrated.

Vitaly Portnikov: If you were a Russian, would you buy?

Ivan Leshchina: No, of course. This is very risky.

Vitaly Portnikov: You mentioned that this could concern not only Crimea, but also Donbass. But can Ukraine also treat claims to the Russian Federation about Donbass if the territory of Donetsk and Lugansk regions in Russia is not recognized as the one over which it exercises some kind of control? “Russia has nothing to do with it, it is not there”, its legal field is not there either, and it is not clear what legal space is there. For me, this is also a mystery, I would like to understand what right they judge in Donetsk. When you come there, is there the Code of Ukraine or the Code of Russia? The Code of the DPR, it seems to me, does not exist as a substance. This is a legal question: what should I do if I want to complain, share property, buy something?

Ivan Leshchina: As far as I know, they judge by some strange hybrid of Ukrainian-Russian legislation. Recently, they adopted some kind of program to bring the legislation in line - it is not clear what. We are sure that we will win and prove that it is the Russian Federation that is responsible for violation of human rights in these territories.

This is not the first time. The first thing that concerned something similar was the matter of Loizida against Turkey , where the European Court of Human Rights recognized that Turkey exercised “general effective control” outside the territory of the Northern Cyprus. There were Turkish troops there, but there was some local administration, such a called Turkish Republic of Northern Cyprus, which Türkiye recognized as an independent state.

Vitaly Portnikov: In my opinion, Turkish troops never hid what they were there.

Most likely, the European court will first distinguish between the jurisdiction of Ukraine and Russia in this conflict, and after that it will consider individual complaints

Ivan Leshchina: Nevertheless, the fact: Turkey does not recognize this as its territory, and the European court admits that Turkey is responsible for violation of human rights in this territory.

Another point is Transnistria, where, too, thanks to the Russian 10th Army, there is the so-called Transnistrian Moldavian Republic. Russia also does not recognize this its territory, however, the European court admitted that Russia is responsible for this.

The most close thing for us is the “Chirags against Armenia” , which concerned the Nagorno -Karabakh. The fact is that Armenia, just like Russia, does not admit that its army participated in a conflict in Nagorno -Karabakh, although this is a well -known fact. The European Court could not clearly establish the fact of the presence of troops, the number of Armenian troops that participated in this conflict.

Виталий Портников: Потому что там есть самостоятельная нагорно-карабахская армия.

Иван Лищина: Она считается независимой, хотя все понимают, что это часть армянской армии. Поэтому Европейский суд не стал вдаваться в эти подробности, он сказал: мы не установили, сколько конкретно армянских солдат находятся на этой территории. Тем не менее, на основе общего анализа ситуации он установил, что уровень экономических, административных, политических связей между Арменией и Нагорным Карабахом таков, что Нагорный Карабах по факту является частью Армении, что Армения установила тот самый «эффективный общий контроль» над этой территорией, вне зависимости от того, сколько конкретно армянских солдат находятся на территории Нагорного Карабаха.

Виталий Портников: Точно такие же решения могут возникнуть и по Донбассу?

Иван Лищина: Это очень близкая аналогия.

Виталий Портников: Если такие решения принимаются, то граждане Украины, которые пострадали в результате тех или иных действий так называемой местной администрации, могут уже подавать иски против России, руководствуясь этим решением?

Иван Лищина: Они уже подают. Скорее всего, Европейский суд сначала разграничит юрисдикцию Украины и России в этом конфликте, а после этого будет рассматривать уже индивидуальные жалобы на ту или другую сторону, поданные заявителями. Хотя вероятность того, что суд примет решение по юрисдикции в одном из индивидуальных заявлений, тоже существует.

Виталий Портников: На Украину подают люди, которые находятся именно на этих территориях, контролируемых Россией?

Если незаконно захватили крымского гражданина, то Украина должна сделать все для того, чтобы его освободить — это обязанность государства

​ Иван Лищина: На данный момент - нет. Но мы знаем, что в суде, по разным данным, лежит три, четыре, пять тысяч заявлений, которые касаются этого конфликта, и из них какой-то процент касается Украины, какой-то - России, то есть подают против России и против Украины, а некоторые и против того, и против этого государства. Это следует логике молдавских дел: было подано, например, дело «Илашку против Молдовы и России» . Европейский суд пришел к выводу, что государство, частью которого официально является территория, оккупированная иностранным государством, не утрачивает полностью связи с этой территорией, и у него остаются определенные обязанности, но они уже не негативные, а позитивные, то есть оно должно по возможности максимально помогать своим гражданам. Например, если мы знаем, что незаконно захватили и посадили в подвал того или иного крымского гражданина, то Украина должна сделать все для того, чтобы его освободить — это обязанность государства.

Виталий Портников: Как вы считаете, Украина выполняет свои позитивные обязанности по отношению к жителям Донецкой и Луганской областей (я не говорю о Крыме).

Иван Лищина: Я считаю, что да. Ведь есть целая программа по обмену пленными, есть программы, связанные с реинтеграцией этой территории. Но я не могу сказать, какое решение примет Европейский суд по этому вопросу.

Виталий Портников: По-моему, в украинском обществе есть претензии по поводу того, что недостаточно внимания уделяют людям, которые там живут. Есть, кстати, еще дискуссия о том, а нужно ли вообще уделять им внимание. Это же оккупированная территория, пусть Россия и несет за нее полную ответственность, а если там живут люди, то это их выбор, пусть они сами устанавливают свои отношения с Россией. Мы видим это в медиа, об этом говорят некоторые политики.

У Украины есть позитивная обязанность делать все, чтобы спасать своих граждан, помогать им в беде

​ Иван Лищина: С юридической точки зрения, у Украины есть позитивная обязанность делать все, чтобы спасать своих граждан, помогать им в беде. С моей точки зрения, нет какого-то особого выбора. Я, как человек, который представляет Украину в спорах в Европейском суде, могу сказать, что у украинских граждан есть очень много претензий к своему государству по самым разным вопросам. В характере украинцев - считать, что государство каким-то образом им помешало и что-то делает не так. Так что жалоб у нас очень много, и тут ничего не сделаешь.