Legal summary
June 2024
Ukraine v. Russia (re Crimea) [GC] - 20958/14 and 38334/18
Judgment 25.6.2024 [GC]
Article 33
Inter-State application
Administrative practices by Russian authorities predominantly in Crimea resulting in multiple Convention violations
Article 46
Article 46-2
Execution of judgment
Individual measures
Respondent State to take measures to secure the safe return of prisoners transferred from Crimea to penal facilities located on the Russian Federation’s territory
Facts – The present two inter-State applications concern mostly events in Crimea, which includes the Autonomous Republic of Crimea (the “ARC”) and the City of Sevastopol. The Ukrainian Government maintain that the Russian Federation was responsible for administrative practices resulting in numerous human-rights violations under the Convention from 27 February 2014, the date from when they alleged that Russia exercised extraterritorial jurisdiction over Crimea. They allege that these administrative practices were part of a large, interconnected campaign of political repression implemented by the respondent State aimed at stifling any political opposition and entailed systematic violations of civil rights and freedoms.
Law –
(1) Common preliminary observations for both applications –
(a) Scope of the case – In so far as application no. 20958/14 was concerned the Court’s examination at the merits stage was confined to the complaints as relinquished to it and as delimited by its admissibility decision in the case. The new complaints that had been raised by the applicant Government did not fall within the scope of the case.
In so far as application no. 38334/18 was concerned the applicant Government had not requested a determination of the individual cases which it had referred to; rather it had requested that they be treated as evidence of an administrative practice in breach of the Convention. Accordingly, individual instances of alleged Convention violations were outside the scope of the case.
(b) Approach to evidence and compliance with Article 38 – The Court adhered to its usual approach to the burden of proof for the purposes of assessing the evidence, that is, the “beyond reasonable doubt” standard of proof. It emphasised that it was particularly difficult to establish the facts in the context of an inter-State case such as the present one, which concerned the aftermath of what the applicant Government had referred to as an “invasion” and the purported use of a judicial and law-enforcement machinery in the territories controlled by the respondent State for “ulterior purposes” other than those for which they had been established. It also concerned a great number of persons and, in so far as application no. 38334/18 was concerned, events spanning both a significant period of time (the applicant Government complaining of ongoing human rights violations) and a vast geographical area (Russia and Crimea). Another relevant factor was the continuing denial of access to Crimea to Ukrainian officials and/or independent monitors.
The respondent Government had not provided, in response to the Court’s express request, material which undoubtedly had been within their possession; in the specific case circumstances, they had been most likely the only entity in a position to provide it in a comprehensive manner. Furthermore, the respondent Government had remained silent since the submission of its memorial in February 2022. They did not respond to the Court’s letters or specific requests for documents, submit any evidential material or additional observations or participate in the hearing. That did not represent a constructive engagement with the proceedings for the examination of the case as required under Article 38. Such lack of cooperation had unnecessarily hampered the Court’s ability to clarify important issues and had had prejudicial effects on its examination of present case. The respondent State had thus failed to comply with its obligations under Article 38.
Consequently, the Court noted that it would draw all the inferences that it deemed relevant and combine such inferences with contextual factors. At the same time, 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 (“IGOs”), non-governmental organisations (“NGOs”) and first-hand witness testimony.
(c) Jurisdiction ratione temporis of the Court – The Court reiterated its finding at the admissibility stage as regards 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, when the second application was introduced (regarded as the “period under consideration” in so far as application no. 20958/14 was concerned). In the absence of any 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.
The Court 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 had ceased to be a contracting Party to the European Convention. As concerned application no. 38334/18 the Court had jurisdiction beyond 16 September 2022 for detention which had started before that date on account of the “continuous” effect of the detention order.
(d) Relationships between the provisions of the Convention and the rules of international humanitarian law – The factual basis on which the respondent State had obtained extraterritorial jurisdiction and continued to exercise it throughout the relevant period(s) on the basis of “effective control” over Crimea, militated in favour of taking account of the relevant provisions of international humanitarian law (“IHL”) when interpreting the Convention rights in issue in this case, as provided for by Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 23 May 1969. The Court notes that the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) and a number of NGOs as well as the Office of the Prosecutor at the International Criminal Court (“ICC”), on whose reports the Court had placed some reliance in its admissibility decision, had expressed the view that certain practices of the respondent State had amounted to violations of IHL The Court therefore would consider the rules of IHL, in so far as relied on by the applicant Government, when considering the compatibility of an alleged administrative practice with the Convention right(s) in question. In so doing it would follow the methodology applied in Georgia v. Russia (II) [GC] and in Ukraine and the Netherlands v. Russia (dec.) [GC] according to which it would examine the interrelation between the two legal regimes with regard to each aspect of the case and each Convention Article alleged to have been breached and would ascertain each time whether there was a conflict between the provisions of the Convention and the IHL rules. That approach was limited to the interpretation and application of the Convention in so far as necessary in the circumstances of the present case. The Court underlined the necessary interplay between IHL and the Convention, as two international legal regimes relevant to the case. It had no bearing on the issues pertaining to Crimea’s status under international law, which, as stated in the admissibility decision were outside the scope of the case.
(e) The general issue of “lawfulness” as required by the Convention – The court’s case-law concerning the “law” and the “lawfulness of acts” of internationally unrecognised entities be divided into two categories. On the one hand, in Loizidou v. Turkey (merits) the Court had held that the acts (the Constitution) of the internationally unrecognised entity (the “TRNC”) had no legal validity. On the other hand, the remaining cases (Mozer v. the Republic of Moldova and Russia ([GC], Ilaşcu and Others v. Moldova and Russia [GC] and Mamasakhlisi and Others v. Georgia and Russia) had concerned the issue of lawfulness of the acts of such entities and whether they had reflected a judicial tradition compatible with the Convention. Whereas the Court had held that “TRNC domestic law” had been based on the Anglo-Saxon legal tradition and had therefore been “law” for Convention purposes, in cases concerning Transdniestria (the “MRT”), the Court found that there had been no basis for assuming that in the “MRT” there had been a system reflecting a judicial tradition compatible with the Convention similar to the one in the remainder of the Republic of Moldova. The Court had reached similar conclusions regarding the “law” of Abkhazia and the “lawfulness” of Abkhaz courts.
The present case was to be distinguished from the above-mentioned cases for the following reasons: firstly, in none of those cases had the Court been called upon to interpret the Convention in the light of the rules of IHL, as in the present case; secondly, those cases had not directly dealt with the issue of whether the law that had been applied by the local or federal authorities (courts) giving rise to the complaints in question could have been regarded as “law” within the meaning of the Convention, thirdly, the “law” that had been applied in the aforementioned second category of cases had been substantively different from the “law” applied in the present case.
Furthermore, whereas the above cases concerned the “law” of internationally unrecognised entities the present case concerned the application of Russian law and acts of the “Russian courts” operating in Crimea following the establishment of “effective control” over that territory. Furthermore, while the “MRT” and Abkhaz-related cases concerned the “law” of unrecognised entities that did not reflect a judicial tradition similar to the one in the remainder of the Republic of Moldova or to the rest of Georgia respectively, in Cyprus v. Turkey (merits) the Court had held that the civil courts operating in the “TRNC” had been in substance based on the Anglo‑Saxon tradition and had not been essentially different from the courts operating before the 1974 events and from those which existed in the southern part of Cyprus. That aspect made the latter case similar, yet different from the present case. The Cyprus v. Turkey case had concerned the continued application of pre-existing Cypriot law valid in the territory of the “TRNC” before Turkey had obtained actual control of that territory, whereas the present case concerned the application in Crimea of the law of the Russian Federation (or the “law” of the local authorities, as its derivative) replacing the previously applicable and valid Ukrainian law.
Accordingly, this was the first case in which the Court had been called upon to determine whether the law of the Russian Federation, which had served as a legal basis for the measures complained of, taken while the Russian Federation exercised extra-territorial jurisdiction over Crimea on account of effective control, could be regarded as “law” within the meaning of the relevant provisions of the Convention.
After 18 March 2014 (date of signature of the Treaty between the Russian Federation and the Republic of Crimea on the Accession of the Republic of Crimea to the Russian Federation and the formation of new constituent entities of the Federation - the “Accession Treaty”) there had been a general and wholesale replacement of Ukrainian law. Equally important were the facts that the respondent State had applied Russian law immediately after signing the “Accession Treaty” and also Crimea’s admission, as a matter of Russian law, as a constituent part of the Russian Federation. However, the relevant rules of IHL clearly provided that there was an obligation to respect and thus maintain the laws in force in the “occupied” territory and not modify, suspend or replace them with its own legislation”.
In such circumstances the Court considered that, when the respondent State had extended the application of its law to Crimea, it had done so in contravention of the Convention, as interpreted in the light of IHL. In conclusion, Russian law could not be regarded as “law” within the meaning of the Convention and any administrative practice based on that law could not be regarded as “lawful” or “in accordance with the law”.
(f) The concept of administrative practice – 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 [GC]. An administrative practice required two elements to be demonstrated, namely the repetition of acts constituting the alleged violation and official tolerance of those acts by the respondent State.
(2) Overall conclusion on the merits in the case – The Court found that it had sufficient evidence – in particular IGO and NGO reports, corroborated by witness testimony and other material – to conclude beyond reasonable doubt, in respect of each of the complaints raised, that the incidents had been sufficiently numerous and interconnected to amount to a “repetition of acts”. Moreover, there had been sufficient evidence showing that such practices had been officially tolerated by the Russian authorities; thus, the Court found that the “official tolerance” element had also been established beyond reasonable doubt. Accordingly, it found that the respondent State had been responsible for an administrative practice of violations of the Convention. With regard to the allegations in relation to application no. 38334/18 the Court found that no issue arose under the six-month rule as the administrative practices at issue had continued after the allegations had been brought before it on 10 August 2018.
More specifically:
(3) Findings on administrative practices in both applications –
(a) Article 6:
Judicial system functioning in Crimea from the time of its admission to the Russian Federation– There had been a wholesale application of Russian law in Crimea, both of substantive and procedural laws, in breach of the Convention in the light of IHL. That situation had resulted from the “Accession Treaty” and Crimea’s admission, as a matter of Russian law, as a constituent entity of the Russian Federation and had stemmed from general, regulatory measures applying throughout the territory of Crimea. Those were binding for all courts and applied to all judicial proceedings and to all persons concerned. That was sufficient evidence to prove that, after enforcement of the “Accession Treaty”, the courts in Crimea could not be considered to have been “established by law” within the meaning of Article 6.
Conclusion: violation (unanimously).
(b) Article 8:
(i) Alleged impossibility of opting out of Russian citizenship – Following the events in February-March 2014 and Crimea’s admission to the Russian Federation, Russian citizenship had been automatically imposed on all permanent residents of Crimea unless they opted out within one month from the date of the admission of Crimea and declared that they would retain their existing citizenship or remain stateless. IGO and NGO reports had referred to multiple obstacles in the practical exercise of the opt-out, which had only been possible within the extremely short timeframe and in limited locations. Furthermore, there had been no clear instructions as to the procedure, unlike the system for obtaining a Russian passport. The above reports had been corroborated by the material provided by the Ukrainian authorities and the witness evidence. The deficiencies had been of such scale and intensity as to prevent the permanent residents of Crimea concerned to effectively being able to opt out of Russian citizenship.
Conclusion: violation (unanimously).
(ii) Transfer of Crimean prisoners to penal facilities located in the Russian Federation – The 2017 Report of the Office of the United Nations High Commissioner for Human Rights on the situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (“the 2017 OHCHR Report”) had noted that a sizeable number of Crimea’s prison population had been transferred to the Russian Federation and that transfers of pre-trial detainees had also taken place, the key reason being the lack of specialised penitentiary facilities in Crimea. According to the most recent information from 2022, 12,500 Crimean prisoners had apparently been transferred to penal facilities located on Russian territory. Such transfers entailed long distances from home for certain prisoners, in particular the “Ukrainian political prisoners” referred to by the Ukrainian Government and therefore hardship because of the separation from their families. The Court in cases against Russia, concerning transfers to a remote penal facility of prisoners tried and convicted in Russia by the Russian courts, had also had regard to the geographical situation of the colonies concerned and the realities of the Russian transport system, which rendered a trip from the applicants’ home city to their colonies a long and exhausting endeavour, especially for their young children, resulting in the applicants receiving fewer visits from their families. The limited prospects of any such visits carried out during a time of war were also relevant.
Furthermore, having regard in particular to its findings in Polyakova and Others v. Russia, the Court found that even assuming that the applicable law in the light of Convention could be Russian law, the relocation of the Ukrainian prisoners from Crimea to the Russian Federation as of March 2014 had not complied with the “in accordance with the law” requirement. Moreover, notwithstanding the amendments that had been passed in the relevant Russian law in 2020, there were no real opportunities for the prisoners to be transferred back to Crimea. In line with its practice in individual applications, the Court also observed that the alleged administrative practice of transferring prisoners to penal facilities on the territory of the Russian Federation concerned the long-term repercussions on their family life which they had continuously experienced over the years as a result of the transfer. Lastly, a number of international organisations as well as civil society representatives had expressed the view that the practice of transfers of Crimean detainees to distant regions of Russia was contrary to the relevant IHL provisions.
Conclusion: violation (unanimously).
(4) Specific findings of administrative practices in application no. 20958/14 from 27 February 2014 to 26 August 2015 –
(a) Article 2 (substantive and procedural):
Alleged enforced disappearances and lack an effective investigation in that regard – There had been forty-three documented cases of disappearances between 2014 and 2018. As reported by relevant international and national authorities the whereabouts and fate of some eight individuals abducted in that period were still unknown. Given the lapse of time since their abduction, those individuals could be presumed dead in the absence of any reliable news regarding their fate. However, the overall examination of the complaint about the existence of an administrative practice of enforced disappearances was not confined only to those individuals who had remained unaccounted for. The following factors were of particular importance even though the presumption of death applied only to those individuals: the overall context of a large number of instances of irregular deprivation of liberty and the relatively short period during which the abductions had taken place; based on the available evidence, the abductions had been perpetrated either by the Crimean self-defence forces (“CSDF”), the Cossacks, Russian Federation armed forces or by agents of the Russian Federal Security Service (“FSB”) – acts by any of those perpetrators had entailed the respondent State’s responsibility irrespective of whether it exercised detailed control over their policies and actions; the victims had been predominantly pro-Ukrainian activists, journalists and Crimean Tatars who had been perceived as opponents to the events that had unfolded in Crimea at the time; the abductions had followed a particular pattern and had been used as a means to intimidate and persecute such individuals in the enforcement of a global strategy of the respondent State to suppress the existing opposition in Crimea to the Russian “occupation”.
There had been “sufficiently numerous” instances of abduction to amount to a pattern or system which was itself life-threatening to engage the applicability of Article 2 as regards that administrative practice, regardless of the fact that most of those abducted had been released soon after they had gone missing.
The evidential material further showed consistently that the respondent State’s prosecuting authorities had not carried out an effective investigation, if any investigation at all, into the incidents underlying the credible allegations made by relevant international organisations and the Russian Ombudsman of an administrative practice of enforced disappearances. Furthermore, the impugned “pattern or system” of enforced disappearances had continued for several years after the period under consideration.
Conclusion: violation (unanimously).
(b) Article 3 (substantive and procedural) and Article 5:
Alleged ill-treatment and unlawful detention of Ukrainian soldiers, ethnic Ukrainians, Crimean Tartars and journalists – The 2017 OHCHR Report had noted “multiple and grave violations… such as arbitrary arrests and detention… ill-treatment and torture” which involved “elements of sexual violence. The victims were kept incommunicado, tied blindfolded, beaten up, … electrocuted…, and threatened with rape”. Similar findings had been made in other reports by other IGOs and NGOs. Testimonies of witnesses and victims, concerning alleged abduction, detention and ill-treatment, which had appeared to be truthful and credible, had also been consistent with the information contained in those reports. The victims had been predominantly Ukrainian soldiers, pro-Ukrainian activists, journalists and Crimean Tatars; the treatment they had been subjected to had caused them undeniable mental and physical suffering. Based on the evidence, such acts had been perpetrated directly by or with the cognisance of, either members of the CSDF, Cossack groups, the FSB, the police or Russian servicemen. The respondent Government had failed to submit any records of detention although such material had been in their exclusive possession.
Conclusion: violations (unanimously).
(c) Article 8:
Alleged raids of private dwellings – IGO reports, along with NGO reports and witness statements, corroborated that large-scale raids and searches of private houses, in particular those of Crimean Tatars, had been carried out by the CSDF, the police and FSB officials, at times without search warrants or attesting witnesses. The arbitrary searches had been based on Russian anti-extremist legislation which lacked clarity and was not sufficiently foreseeable as to its effects.
Conclusion: violation (unanimously).
(d) Article 9:
Allegations of harassment and intimidation of religious leaders not conforming to the Russian Orthodox faith, arbitrary raids of places of worship and confiscation of religious property – Multiple IGO reports and NGO reports, the Ukrainian authorities and individual witnesses, consistently confirmed the allegations of harassment and intimidation of religious leaders not conforming to the Russian Orthodox faith (in particular Ukrainian Orthodox priests and Muslim imams), arbitrary raids of places of worship and confiscation of religious property. Reported acts included, inter alia, the seizure, closure or storming of churches of the Ukrainian Orthodox Church of the Kyiv Patriarchate; the banning of priests from entering the churches; the non-renewal of residence permits for foreign religious leaders; raids and searches of eight out of the ten Muslim religious schools (madrassas); the setting on fire of a mosque and a house belonging to the church; damage to a Muslim cemetery; the confiscation of religious literature deemed “extremist”. Such incidents had led to a considerable number of ministers and imams leaving Crimea, the Ukrainian Orthodox Church of the Kyiv Patriarchate losing control over a significant number of churches belonging to it and a significant decline in the number of religious organisations operating in Crimea. The material available showed that those responsible for the incidents had been “armed and masked members of the security forces”, FSB officers, Cossacks, members of the CSDF or “local pro-Russian militia”. The interferences with the right to religious freedom had been unlawful, and the respondent Government had not provided a legitimate aim or any justification for them.
Conclusion: violation (unanimously).
(e) Article 10:
Alleged suppression of non-Russian media – As confirmed in several IGO and NGO reports, in March 2014 all Ukrainian television channels in Crimea had been shut down and the only Ukrainian-language newspaper (Krymska) banned from distribution. Practices that had followed included refusing to grant or revoking broadcasting licences; failing to allocate broadcasting frequencies; issuance of “warnings” to media outlets deemed “extremist” (for using for example the terms “annexation” or “temporary occupation”) under the relevant legislation; criminal investigations, pre-trial detention and conviction. That had led to a significant decline in the number of media outlets authorised to operate in Crimea. The IGOs and NGOs had also reported systematic harassment and intimidation of journalists, who received “warnings” and were detained and prosecuted for actions allegedly aimed at violating the territorial integrity of the Russian Federation. Overall, there had been an administrative practice of “suppression” of non-Russian media, including the closure of Ukrainian and Tatar television stations, which had not been lawful and, in any event, had not been necessary in a democratic society.
Conclusion: violation (unanimously).
(f) Article 11:
Alleged prohibition of public gatherings and manifestations in support of Ukraine or the Tatar community and alleged intimidation and arbitrary detention of organisers of demonstrations – The available evidential material contained consistent information showing that public gatherings of support for Ukraine or the Tatar community had been systematically prohibited and prevented and organisers of demonstrations intimidated and arbitrarily detained. There had been sufficient evidence of numerous and interconnected instances amounting to interference with the freedom of peaceful assembly, as defined in the Court’s case-law, such as “lengthy blanket prohibitions on holding public assemblies” and rejections based on “procedural (or administrative) technicalities”; general measures (decisions) imposing temporary bans on public gatherings regardless of the individual facts of a case; prohibitions on holding assemblies at a particular place or route; counter-demonstrations and attacks by third parties; and warnings, interrogations, detentions, trials and fines for administrative offences. The impugned measures had not only been unlawful, but also had not been proved to have been necessary in a democratic society.
Conclusion: violation (unanimously).
(g) Article 1 of Protocol No. 1:
Alleged property expropriations without compensation – There had been a systemic campaign of large-scale expropriation (nationalisation) of property belonging to civilians and private enterprises in Crimea, which had entailed a conclusive transfer of ownership without compensation. The available reports by international organisations and NGOs contained consistent information confirming such an interference with property rights, and also in finding numerous deficiencies in the way in which expropriation had been implemented and the lack of any procedural safeguards or an appeal procedure. The respondent Government had not presented any evidence to cast doubt on the veracity of the allegations on the lack of foreseeability of the legislative measures referred to and the disproportionate nature of the deprivation of possessions complained of. Furthermore, they had not argued or shown that the impugned practice had been justified by “imperative military necessity” or “for the needs of the army of occupation”, as required under the relevant provisions of IHL. The administrative practice under this head had thus been unlawful.
Conclusion: violation (unanimously).
(h) Article 2 of Protocol No. 1:
Alleged suppression of the Ukrainian language in schools and persecution of Ukrainian-speaking children at school – There were multiple concordant pieces of evidence consistently pointing to a significant decline in the number of educational facilities and classes teaching in Ukrainian in Crimea, as compared with the numbers previously available prior to the March 2014. Threats and harassment for using the Ukrainian language in the context of education had also been noted in the 2017 OHCHR report, in a local NGO’s report and in some witness testimonies. The failure of the de facto authorities in Crimea to make continuing provision for such teaching had to be considered in effect to be a denial of the substance of the right to education. That denial was a direct consequence of “the introduction of the Russian Federation’s education standards in Crimea” as the respondent State’s policy, resulting in the education in the Ukrainian language almost disappearing from Crimea.
Conclusion: violation (unanimously).
(i) Article 2 of Protocol No. 4:
Alleged restrictions on freedom of movement between Crimea and mainland Ukraine – The restrictions on freedom of movement between Crimea and mainland Ukraine had not been in dispute between the parties and had been corroborated by all available evidence. The Court found that the de facto transformation by the respondent State of the administrative border line into a State border (between Russia and Ukraine) had not been “in accordance with the law”.
Conclusion: violation (unanimously).
(j) Article 14 in conjunction with Articles 8, 9, 10 and 11 and Article 2 of Protocol No. 4:
Alleged discriminatory treatment of the Crimean Tartar population – IGO and NGO reports contained consistent information that Tatars in Crimea had been particularly targeted, especially those with links to the high representative and executive body of Crimean Tatars People (the “Mejlis”) and referred to “acts of intimidation, pressure, physical attacks, warnings as well as harassment through judicial measures, including prohibitions, house searches, detentions and sanctions”. Local NGOs had also referred to the closure of independent Crimean Tatar media and attacks on cultural, religious and private property, the resulting effect being that “between 15,000 and 30,000 Crimean Tatars were believed to have fled the territory of the Crimean Peninsula”. Such practices were corroborated by the Ukrainian prosecuting authorities. Allegations regarding the disconnection of the Crimean Tatar’s television channel and physical abuse of its journalists by armed “Cossacks”, as well as the harassment of Crimean Tatars (marking houses with crosses), were confirmed by some witnesses. The respondent Government had failed to provide the Court with any reason why such evidence could not corroborate the Ukrainian Government’s allegations. Nor had they provided any objective or reasonable justification for treating Crimean Tatars differently.
Conclusion: violation (unanimously).
(5) Specific findings of administrative practices in application no. 38334/18 –
(a) Article 3 (substantive and procedural):
(i) Alleged ill-treatment of “Ukrainian political prisoners” in Crimea and the Russian Federation and lack of an effective investigation in that respect – The Court reiterated that there had been consistent information before it that there had been “multiple and grave violations of the right to physical and mental integrity” committed by members of the CSDF, various Cossack groups and later by representatives of the Crimean FSB and the police. The Ukrainian Government had specifically alleged that “Ukrainian political prisoners” had been subjected to beatings, the use of electric shocks, mock executions and the administration of unknown drugs aimed at inflicting severe pain or suffering in order to obtain information, extract confessions about crimes or testimony about acts carried out by others or inflict punishment or intimidation. The severity of such treatment taken together with the element of intent warranted its classification as acts of torture. Other types of conduct, such as, for example, threats of ill-treatment or psychological pressure had amounted at least to inhuman or degrading treatment. The above allegations were corroborated either by direct testimony of victims and/or their lawyers, by IGO and NGO reports and by the Ukrainian prosecuting authorities. There had been an administrative practice of ill-treatment of “Ukrainian political prisoners” which had caused them undeniable mental and physical suffering. Furthermore, there had been a lack of an effective investigation in that respect and those responsible had not been brought to account.
Conclusion: violation (unanimously).
(ii) Conditions of detention in the Simferopol SIZO – The evidence that had been submitted – by detainees, their lawyers, local NGOs and IGOs – showed that, since 2014, “Ukrainian political prisoners” had been held in inadequate conditions of detention in the Simferopol SIZO, the only pre-trial detention facility in Crimea up until the Autumn of 2022. Those conditions had amounted to degrading treatment, in particular on account of the severe overcrowding and other deficiencies such as insufficiency of sleeping space, inadequate temperatures, lack of ventilation, infestation, lack of privacy of toilets and poor food. The scale and systemic nature of the administrative practice had been the result of overall shortcomings in the organisation and functioning of the Crimean prison system.
Conclusion: violation (unanimously).
(b) Articles 5 and 7:
Alleged unlawful deprivation of liberty, prosecution and conviction of “Ukrainian political prisoners” – The Ukrainian Government had submitted a body of information and evidence from many different sources describing arrests, placement in pre-trial detention and conviction by the courts established in Crimea by the Russian Federation of members of different groups of Ukrainians for having exercised, inter alia, their freedom of expression, association or peaceful assembly. The sources of the evidence included, importantly, case material from the criminal proceedings against the prisoners in question. The impugned measures had been based on the application of the law of the Russian Federation in Crimea, which the Court had already found could not be regarded as “law” within the meaning of the Convention and the courts in Crimea could not be considered to have been “established by law” within the meaning of Article 6. Moreover, among other shortcomings, not only had the acts which had been the subject of certain proceedings taken place before the Russian Federation had established effective control over Crimea (on 27 February 2014), as a matter of international law (including the Convention), the courts in Crimea, comprising judges assigned by Ukrainian authorities, were required to assess individual acts by reference to the requirements of Ukrainian and not Russian law. It was the Court’s view, therefore, that the proceedings before and decisions of the Crimean “courts” had run counter to the principle of the non-retroactivity of the criminal law enshrined in Article 7, as interpreted in the light of IHL. Several IGO and NGO reports had criticised the retroactive application of criminal law by the Crimean “courts”. Even assuming, however that those “courts” had correctly applied Russian law and thus that the impugned measures had had a legal basis, in some instances the application of criminal-law provisions had been extended in an unforeseeable manner, contrary to the object and purpose of the above provision.
Conclusion: violation (unanimously).
(c) Articles 10 and 11:
Alleged unlawful deprivation of liberty, prosecution and conviction of “Ukrainian political prisoners” – The wealth of evidence available concerning the overall situation in Crimea contained information about the arrest and prosecution of political opponents accused of extremism or terrorism, of Ukrainians who had participated in the Euromaidan protests, of Crimean activists, of Crimean Tatars linked to the Mejlis, of practising Muslims accused of belonging to banned Islamic groups, and of journalists or individuals posting messages on social media expressing dissent or critical of the authorities of the Russian Federation. The alleged administrative practice also covered instances of both pre-trial detention and criminal convictions. Reiterating its previous findings concerning the extension of Russian law to Crimea, the Court found that such a practice, which had started in 2014 and, according to recent international reporting still continued unabated, could not be regarded as “lawful”.
Conclusion: violation (unanimously).
(d) Article 18 in conjunction with Articles 5, 6, 7, 8, 10 and 11:
Alleged ulterior purpose for violations in relation to “Ukrainian political prisoners”–
(i) Applicability – In the light of the principles in the Court’s case-law no question arose when assessing the applicability of Article 18 taken in conjunction with Articles 5, 8, 10 and 11; the Court had already found a breach of Article 18 in conjunction with those Articles. By contrast, the question arose as to its applicability in conjunction with Articles 6 and 7, in connection to which the Court had taken different approaches in its case-law. The Grand Chamber thus had to examine whether Articles 6 and 7 contained any express or implied restrictions which might form the subject of the Court’s examination under Article 18. That required an examination of the applicability of Article 18 in the light of any substantive developments in the Court’s case-law in relation to those provisions.
In so far as Article 6 was concerned the Court noted that its provisions allowed for both explicit and implicit restrictions. An express limitation applied to the public pronouncement of judgments whereas the Court had recognised in its case-law several implied limitations. Having regard to its extensive case-law on the matter, the Court found that the rights protected under Article 6 were guarantees with reference to which fundamental abuses by a State might be likely to manifest themselves. Therefore, trials before a court must never be used for “ulterior purposes” and thereby undermined. Article 18 was thus capable of applying in conjunction with Article 6.
However, the situation was not the same in relation to Article 7; the Convention required the observance of Article 7 guarantees, including in the most difficult of circumstances. Given the non-derogable nature of the Article 7 guarantee, the Court considered that Article 18 could not apply in conjunction with it.
Conclusion: Article 18 applicable in conjunction with Articles 5, 6, 8, 10 and 11 (compatible ratione materiae); Article 18 not applicable in conjunction with Article 7 (incompatible ratione materiae).
(ii) Merits – The Court considered that in the present case the complaint under Article 18 constituted a fundamental aspect of the case that had not been addressed with regard to the previous complaints and merited separate examination. In that connection, the Court reiterated its findings of administrative practices in breach of Articles 5, 6, 8, 10 and 11 with respect to the sequence of events which had occurred in Crimea and, more specifically, its findings under each of those Articles that the “lawfulness” requirement had not been complied with. With regard to some complaints, it had carried out a supplementary review and concluded that the provisions applied, in any event, had not satisfied the “quality of law” requirement. Those findings, however, could not in themselves be sufficient to find a violation of Article 18; the mere fact that a restriction of a Convention right or freedom did not meet all the requirements of the clause that permitted it did not necessarily raise an issue under Article 18. The case thus had to be examined from the standpoint of a potential plurality of purposes. In particular, whether the impugned measures had pursued an ulterior purpose (a purpose not prescribed by nor permissible under the Convention, involving misuse of power) and, if that was the case, whether that ulterior purpose had been the predominant purpose of the restriction applied.
The Court observed, that on the evidence before it, the purported acts of persecution had not been directed at random individuals, but at particular groups consisting either of Ukrainian activists and journalists, or of Crimean Tatars who had exercised their fundamental rights to freedom of expression or freedom of peaceful assembly or association, and who had been perceived as being supporters of the State sovereignty and integrity of Ukraine. Those acts had been performed on the basis of Russian criminal law, and in particular, anti-terrorist and anti-extremism legislation. Furthermore, political and non-governmental organisations in Crimea perceived as having “extremist” views and the Mejlis itself had been banned, while the population at large had been encouraged to identify and report anyone who opposed the Russian Federation’s interests and policies. The Court was also mindful of the authoritative international reporting on the human rights situation in Crimea which described a widespread climate of intimidation, harassment and pressure targeting those who expressed dissent and criticism against the Russian authorities. It noted, inter alia, that in many of the criminal proceedings referred to by the applicant Government, the Crimean law-enforcement authorities had tried to link the charges brought against those individuals to their political views or their (actual or perceived) affiliation to different banned organisations regarded as holding anti-Russian views, such as the Mejlis or Ukrainian organisations that had been banned in Russia. The Court also noted the significant changes in Russian legislation as of February 2014, increasing and expanding criminal liability for conduct which had pertained to the exercise of freedom of expression, peaceful assembly and association. The same type of contextual evidence had been taken into account in Navalnyy v. Russia [GC] in order to corroborate the view that the authorities were becoming especially severe in their response to the conduct of political activists in the sphere of freedom of assembly.
The Court concluded that the prosecution and conviction of the “Ukrainian political prisoners” referred to by the Ukrainian Government had had the ulterior motive of punishing and silencing any political opposition. The reprehensibility of that ulterior purpose was corroborated by the fact that a number of resolutions had been adopted within the Council of Europe or the European Union urging the Russian Federation to release political prisoners held either in Crimea or in Russia, with the European Parliament finding that the judicial system was being instrumentalised as a political tool to repress those opposed to the Russian annexation of the Crimean peninsula. The Court thus found that the cases of the “Ukrainian political prisoners” were emblematic of a pattern of retaliatory prosecution and misuse of criminal law and illustrative of a general crackdown on political opposition to Russian policies in Crimea. The elements of the case demonstrated the existence of a continuous State policy of stifling any opposition to the Russian policies, a course of action which had been developed and publicly promoted by prominent representatives of important Russian authorities.
The Russian authorities ultimately sought to suppress that political pluralism which formed part of “effective political democracy” governed by “the Rule of law”, both being concepts to which the Preamble to the Convention referred. The Court was satisfied that the ulterior purpose of restricting the rights of “Ukrainian political prisoners” constituted the predominant purpose.
Conclusion: violation (unanimously).
Article 46: The Court found that the general principles from its case-law for the adoption of individual measures should also be applied to inter-State applications. In view of the particular circumstances of the case, in particular its finding of a violation of Article 18 in conjunction with Article 8, the respondent State had to 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.
Article 41: just satisfaction reserved.
(See also Loizidou v. Turkey, 15318/89, 18 December 1996, Legal Summary; Cyprus v. Turkey [GC], 25781/94, 10 May 2001; Ilaşcu and Others v. Moldova and Russia [GC], 48787/99, 8 July 2004, Legal Summary; Catan and Others v. the Republic of Moldova and Russia [GC], 43370/04 et al., 19 October 2012, Legal Summary; Georgia v. Russia (I) [GC], 13255/07, 3 July 2014, Legal Summary; Mozer v. the Republic of Moldova and Russia [GC], 11138/10, 23 February 2016, Legal Summary; Polyakova and Others v. Russia, 35090/09 et al., 7 March 2017, Legal Summary; Navalnyy v. Russia [GC], 29580/12 et al., 15 November 2018, Legal Summary; Ukraine v. Russia (re Crimea) (dec.) [GC], 20958/14 and 38334/18, 16 December 2020, Legal Summary; Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal Summary; Dadusenko and Others v. Russia (dec.) 36027/19 et al., 7 September 2021, Legal Summary; Ukraine and the Netherlands v. Russia (dec.) [GC], 8019/16 et al, 30 November 2022, Legal Summary; Svetova and Others v. Russia, 54714/17, 24 January 2023, Legal Summary; Mamasakhlisi and Others v. Georgia and Russia, 29999/04 and 41424/04, 7 March 2023; Georgia v. Russia (IV) (dec.) [GC], 39611/18, 28 March 2023, Legal Summary)
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