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Home > Publications > PISM Spotlights > PISM Spotlight: Ukraine’s Complaint to the European Court of Human Rights Regarding the Kerch Strait Incident

PISM Spotlight: Ukraine’s Complaint to the European Court of Human Rights Regarding the Kerch Strait Incident

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08 January 2019
Szymon Zaręba
no. 1/2019

On 7 January, Ukraine filed an inter-state application against Russia concerning the events in the Black Sea and the Kerch Strait on 25 November 2018 and the arrest of 24 Ukrainian crewmembers of naval ships by the Russian coast guard, a case which had already been brought before the European Court of Human Rights (ECtHR). This step enables the court to assess whether the Russian actions violated their human rights.

What is an interstate application to the ECtHR?

An interstate complaint may be brought by a state party to the European Convention on Human Rights (ECHR) if it considers that another state party has violated the convention or its protocols. They usually concern collective infringements of the rights of citizens or residents of the applicant state. In practice it is an exception because, as a rule, it is the injured individuals themselves who should bring their applications to the court. Since the entry into force of the convention in 1953, there have been only 26 cases arising from such complaints, of which currently nine are pending: Slovenia against Croatia, three brought by Georgia against Russia, and five cases brought by Ukraine against Russia.

What legal steps has Ukraine taken on behalf of its sailors?

On 29 November 2018, Ukraine formally lodged an application with the ECtHR demanding interim measures to protect the health and life of its sailors. The court partially granted the request, demanding from Russia information on the whereabouts and state of health of the arrested and asking Russia to provide them with medical care. In the supplemented complaint, Ukraine demands their release and repatriation and requests that the court declare that Russia has violated their right to liberty and security, right to a fair trial, and the prohibition of torture and inhuman or degrading treatment.

What are the positions of the parties?

According to Ukraine, the Russian side should treat the sailors as prisoners of war and accord them protection under the Geneva Conventions, so it cannot, for instance, keep them in custody as if they were ordinary criminals and conduct criminal proceedings against them. Breaking these rules indirectly violates the ECHR, which requires that the arrest take place in accordance with the law. Russia, in turn, argues—and contrary to the facts—that it detained the sailors because they “illegally” crossed its maritime border and considers itself entitled to try them. It also believes that it has provided them with sufficient medical care and legal assistance.

What do the Ukrainian authorities count on in the long run?

Ukraine is seeking to increase Russia’s political costs in connection with the illegal occupation of Crimea and unlawful activities in adjacent sea areas. Thanks to its application to the court, it gets a chance to obtain political benefits in the form of an international court confirmation that there exists an armed conflict between Ukraine and Russia, and that despite the actual changes made by force, the border between them remains unchanged. The chance of this ruling is greater than in the case of complicated proceedings initiated earlier on human rights violations in Crimea as a whole, which may last much longer.

How does the whole affair affect the situation of Russia in the Council of Europe?

Russia’s lack of progress in implementing the resolution of the Parliamentary Assembly of the Council of Europe, calling on the country to withdraw from Crimea and de-escalate the conflict in eastern Ukraine, contributed in October 2018 to postponing a vote on procedural changes abolishing the sanctions imposed on Russia in 2014 for January 2019. In light of the events of the last two months and Ukraine’s subsequent complaints to the ECtHR, the lifting of these sanctions becomes even less likely. This may persuade Russia to denounce the ECHR and leave the Council of Europe, which was signalled by Minister Sergey Lavrov in December 2018.

What would be the consequences of Russia’s exit from the Council of Europe’s structures?

Even in the event of Russia’s denunciation of the ECHR, it would not formally be exempt from the obligation to provide redress for previous violations, including those in nearly 2,000 cases involving Georgian citizens initiated after 2008 and over 4,000 cases initiated by Ukrainian citizens since 2014. However, such a denunciation would carry with it a deterioration of human rights protection standards in Russia itself and would prevent the citizens of other countries from lodging new complaints in connection with the conflicts supported by Russia: in Abkhazia and South Ossetia (Georgia), Transnistria (Moldova) and Ukraine. It would also be another step on the path of Russia’s departure from observance of legal standards, norms, and democratic values ​​of European countries.


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