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Legal remedies for human rights violations on the Ukrainian territories outside the control of the Ukrainian authorities

Doc. 14139: collection of written amendments | Doc. 14139 | 11/10/2016 | Final version

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1The Parliamentary Assembly is deeply worried about the human rights situation in Crimea and in the self-proclaimed “people’s republics” of Donetsk and Luhansk (“DPR” and “LPR”).
2It reaffirms its position that the annexation of Crimea by the Russian Federation and the military intervention by Russian forces in eastern Ukraine violate international law and the principles upheld by the Council of Europe, as stated in Assembly Resolution 2112 (2016), Resolution 2063 (2015), Resolution 1990 (2014) and Resolution 1988 (2014).
3The “DPR” and “LPR”, established, supported and effectively controlled by the Russian Federation, do not enjoy any legitimacy under Ukrainian or international law. This applies to all their “institutions”, including the “courts” established by the de facto authorities.
4Under international law, the Russian Federation, which exercises de facto control over these territories, is responsible for the protection of their population. Russia must therefore guarantee the human rights of all inhabitants of Crimea and of the “DPR” and “LPR”.
5Regarding Crimea, Russian military presence and effective control have been officially acknowledged by the Russian authorities. Regarding the “DPR” and the “LPR”, effective control is based on the well-documented crucial role of Russian military personnel in taking over and maintaining control of these regions, against the determined resistance of the legitimate Ukrainian authorities and on the complete dependence of the “DPR” and “LPR” on Russia in logistical, financial and administrative terms.
6Both in Crimea and in the conflict zone in the Donbas region, serious human rights violations have occurred, and are still occurring, as documented by numerous reports of, inter alia, the Council of Europe’s Commissioner for Human Rights, the United Nations Human Rights Monitoring Mission for Ukraine, the Special Monitoring Mission to Ukraine of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR), as well as leading Ukrainian and international non-governmental human rights organisations. These violations include extrajudicial killings, enforced disappearances, torture and inhuman and degrading treatment, unlawful detentions and disproportionate restrictions of the freedom of expression and information.
7Victims of human rights violations have no effective internal legal remedies at their disposal:
7.1as far as the residents of the “DPR” and “LPR” are concerned, local “courts” lack legitimacy, independence and professionalism; the Ukrainian courts in the neighbouring government-controlled areas to which jurisdiction for the non-controlled areas was transferred by Ukraine are difficult to reach, cannot access files left behind in the “DPR” and “LPR” and cannot ensure the execution of their judgments in these territories;
7.2as far as the residents of Crimea are concerned, the climate of intimidation also affects the independence of the courts and, in particular, the willingness of the police and the prosecution service to hold to account perpetrators of crimes against perceived or actual Ukrainian loyalists.
8In Crimea, Ukrainians in general, and Crimean Tatars in particular, have been severely intimidated by the above-mentioned human rights violations and the fact that they remain largely unpunished. Many were forced to leave Crimea. In parallel, all inhabitants of Crimea have been placed under immense pressure to obtain Russian passports and renounce their Ukrainian nationality in order to have access to health care, housing and other essential services. The Crimean Tatars, following the dissolution of the Mejlis and its local branches, have lost their traditional democratic representation. Tatar media and the Tatar’s Muslim religious practice were also targeted. The cumulative effect of these repressive measures is a threat to the Tatar community’s very existence as a distinct ethnic, cultural and religious group.

In the draft resolution, paragraph 8, fourth sentence, replace the words "dissolution of" with the following words: "recent decision of the Supreme Court of the Russian Federation on banning".

In the draft resolution, after paragraph 8, insert the following paragraph:

"Moreover, in accordance with reports of authoritative international and non-governmental organizations (in particular Freedom House, Amnesty International, Human Rights Watch and many others), there are signs of violations of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination by the Russian Federation in occupied Crimea in relation to Crimean Tatars. In particular the Russian Federation does not guarantee the right of Crimean Tatars to equality before the law, notably in the enjoyment of the right to security of the person and protection by the State against violence or bodily harm, the right to freedom of movement, the right to freedom of thought, conscience and religion, the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association. Such violations may be seen in the enforced disappearances of Crimean Tatars, the prohibition on the entry to Crimea of the leaders of the Crimean Tatar people, interference with religious pratices, the prohibition of Crimean Tatar mass media and the prohibition of the activity of the Mejlis of the Crimean Tatar People, the highest recognized executive and political organ of Crimean Tatars."

9In the conflict zone in the Donbas region, the civilian population as well as a large number of combatants suffered violations of their rights to life and physical integrity and to the free enjoyment of property, by war crimes and crimes against humanity including the indiscriminate or even intentional shelling of civilian areas, sometimes provoked by the stationing of weapons in close proximity.
10Numerous inhabitants of the conflict zone in the Donbas, on both sides of the contact line, still suffer on a daily basis from numerous violations of the ceasefire agreed in Minsk. These violations are documented daily by the OSCE Special Monitoring Mission in Ukraine, despite the restrictions on access imposed mainly by the de facto authorities of the “DPR” and “LPR”. The inhabitants also suffer from the prevailing climate of impunity and general lawlessness due to the absence of legitimate, functioning State institutions, and in particular of access to justice in line with Article 6 of the European Convention on Human Rights (ETS No. 5). They also endure severe social hardship worsened by restrictive measures imposed by the Ukrainian authorities regarding pension and social assistance payments. Finally, persons displaced from the “DPR” and “LPR” face expropriation of the properties they left behind due to the unlawful re-registration requirements imposed by the de facto authorities.

In the draft resolution, paragraph 10, after the fourth sentence, insert the following sentence: "The legal and humanitarian situation of ordinary detainees sentenced to prison terms before the conflict (about 5000 persons in the "LPR" alone) is unacceptable: decisions by Ukrainian judicial authorities on early release (probation, amnesty) are routinely ignored by the de facto authorities, who subject prison inmates to forced labour and various forms of inhuman and degrading treatment."

In the draft resolution, after paragraph 10, insert the following paragraph:

"The Assembly is concerned that derogation from the International Covenant on Civil and Political Rights and the European Convention on Human Rights has resulted in a lower level of protection of the rights guaranteed by these instruments."

Explanatory note

Ukraine proclaimed derogations from certain obligations imposed by the ECHR and ICCPR; Amongst these derogations is a category of rights defined by United Nations Human Rights Committee as non-derogable, namely lawfulness of arrest. According to the European Court on Human Rights, each separate request is evaluated according to the lawfulness of the derogation sought.

11The Ukrainian authorities have begun prosecuting alleged perpetrators of war crimes and other human rights violations on the side of pro-government forces. But they have not yet granted international observers access to all places of detention, in particular those run by the Security Service of Ukraine (SBU).

In the draft resolution, paragraph 11, replace the second sentence with the following sentence: "The Assembly takes note of the constructive cooperation of Ukraine with relevant international monitoring mechanisms, such as the European Committee on Prevention of Torture and the UN Subcommittee on Prevention of Torture (SPT), in particular in the context of that committee's recent visit to Ukraine, and calls on all parties involved to allow external monitors regular and unhindered access to all places of deprivation of liberty, in accordance with their mandates."

12The Minsk Agreements include amnesty clauses for the participants in the armed conflict in the Donbas region. The Assembly recalls that under international law, such clauses cannot justify impunity for the perpetrators of serious human rights violations.
13Regarding the elections foreseen in the Minsk Agreements, the Assembly considers that as long as the present situation in the “DPR” and “LPR”, characterised by a climate of insecurity, intimidation and impunity and a lack of freedom of expression and information, prevails, free and fair elections (as guaranteed by Article 3 of the Protocol to the European Convention on Human Rights (ETS No. 9)) are not possible in these regions.
14The Assembly regrets that neither the Russian Federation nor Ukraine have ratified the Rome Statute establishing the International Criminal Court (ICC), whilst noting that Ukraine has accepted the ICC’s jurisdiction for the conflict zone in the Donbas region in its declarations of 17 April 2014 and 8 September 2015 under Article 12.3 of the Rome Statute. The Assembly welcomes the changes to the Constitution of Ukraine, finally adopted by the Ukrainian Parliament, by which the ratification of the Rome Statute will be possible. At the same time, the Assembly is concerned that these changes will come into effect only in three years’ time, and not as soon as possible, as was recommended by the Assembly.

In the draft resolution, paragraph 14, first sentence, delete the following words: "for the conflict zone in the Donbas region".

15The Assembly is deeply worried about the lack of progress in the international investigation into the downing of flight MH17 in Donbas.

In the draft resolution, replace paragraph 15 with the following paragraph:

"The Assembly welcomes the activities of the Joint Investigation Team (JIT) and its preliminary report of 28 September 2016 on the criminal investigation into the downing of flight MH17 in Donbas. The Assembly takes note of the JIT's findings that flight MH17 was shot down from territory controlled by Russian-backed militants by a BUK missile system which had been brought in from the territory of the Russian Federation and which was returned to Russian Federation territory after launch. The Assembly calls on all parties involved to cooperate fully with the criminal investigation in order to bring those responsible to justice."

16The Assembly therefore urges:
16.1the competent authorities, both in Ukraine and in the Russian Federation, to:
16.1.1effectively investigate all cases of serious human rights violations allegedly committed in all areas under their effective control;
16.1.2prosecute their perpetrators, thereby also discouraging any such violations in future;
16.1.3compensate their victims to the extent possible;
16.1.4accede to the Rome Statute of the ICC;
16.1.5fully implement the Minsk Agreements;
16.2the Russian authorities to:
16.2.1end their repressive actions against people loyal to the Ukrainian authorities in all areas under their effective control, including Crimea; in particular, to restore the historical rights of the Crimean Tatar community and to enable the re-establishment of the rule of law in the whole of eastern Ukraine;

In the draft resolution, paragraph 16.2.1, replace the word "community" with the word "people".

16.2.2meanwhile, ensure the protection of the fundamental rights of all inhabitants of the “DRP” and the “LPR” and the fulfilment of their basic needs, and exercise their influence with the de facto authorities to this end;
16.2.3facilitate the independent monitoring of the human rights situation in all Ukrainian territories under their effective control, including Crimea;

11 October 2016

Tabled by Mr Sergiy VLASENKO, Mr Leonid YEMETS, Ms Olena SOTNYK, Mr Georgii LOGVYNSKYI, Mr Volodymyr ARIEV

Votes: 90 in favor 1 against 12 abstentions

In the draft resolution, after paragraph 16.2.3, insert the following paragraph:

"use all available legal means to repeal the decision of the Supreme Court of the Russian Federation to outlaw the Mejlis, and to allow the Crimean Tatar community to choose its own self-governing institutions;"

In the draft resolution, after paragraph 16.2.3, insert the following paragraph:

"ensure unrestricted access by representatives of international organisations and consular officers of Ukraine to convicted persons displaced from territories temporarily not under Ukrainian control to penitentiary institutions in the territory of the Russian Federation;"

In the draft resolution, after paragraph 16.2.3, insert the following paragraph:

"transfer to Ukraine all convicted Ukrainian citizens who express such a wish, in order that they may serve the remainder of their sentences in territories controlled by the Ukrainian authorities;"

In the draft resolution, after paragraph 16.2.3, insert the following paragraph:

"bring an end to the displacement from the territory of Crimea to the territory of the Russian Federation of persons who have no Russian citizenship, including those sentenced to imprisonment, who have, whatever the circumstance, found themselves under the control of the Russian Federation in Crimea;"

16.3the Ukrainian authorities to make easier, as far as is in their power, the daily life of the inhabitants of the territories outside of their control and of the displaced persons from these areas by reducing administrative burdens in access to pensions and social allowances and by facilitating the inhabitants’ access to justice by adequately equipping and staffing the courts in government-controlled areas to which jurisdiction for the non-controlled areas has been transferred;

11 October 2016

Tabled by Mr Dmytro SHPENOV, Ms Yuliya LOVOCHKINA, Mr Constantinos EFSTATHIOU, Sir Alan MEALE, Mr José CEPEDA, Mr Antonio GUTIÉRREZ

Votes: 25 in favor 63 against 15 abstentions

In the draft resolution, replace paragraph 16.3 with the following paragraphs: "the Ukrainian authorities to: - make easier, wherever possible, the daily lives of inhabitants of territories outside their control, and of displaced persons from these areas, by resuming payments to individuals regardless of their registration and actual residence, implementing relevant court judgements, reducing administrative burdens on access to pensions and social allowances, as well as facilitating access to justice by adequately equipping and staffing the courts in those government-controlled areas to which jurisdiction for the non-controlled areas has been transferred;"

In the draft resolution, after paragraph 16.3, insert the following paragraph:

"- review and reconsider Ukraine's derogation from the International Covenant on Civil and Political Rights and the European Convention on Human Rights on a regular basis with respect to necessity, proportionality and non-discrimination."

16.4the international community to continue focusing on the human rights and humanitarian situation of the people living in the territories of Ukraine not under the control of the Ukrainian authorities and refrain from placing demands on Ukraine the fulfilment of which would cement the unlawful status quo;
16.5the ICC to exercise its jurisdiction regarding the conflict zone in the Donbas region to the extent that is legally possible following the declarations filed by Ukraine.

In the draft resolution, paragraph 16.5, delete the following words: "regarding the conflict zone in the Donbas region".

17The Assembly resolves to continue observing the human rights situation in the conflict zone in the Donbas region and in Crimea as a matter of priority.