Ukrainian law students and young lawyers are reporting for JURIST on national and international developments in and affecting Ukraine. This dispatch is from Anna Balabina, a law student at Ukrainian Catholic University in Lviv.
It is widely known that a country is often hugely influenced by what happens in a neighboring state. In the case of Ukraine, it is obvious that Russia has had and, unfortunately, will continue to have, some effect on the life and further history of independent Ukraine. Having a totalitarian country on your border, however, can cause major problems, as demonstrated by the recent Russian invasion. Because of Russia’s proximity and its potential impact, every major development in Russian legislation and governance must be fully analyzed and understood by Ukraine and international society so that we can predict its consequences for Ukraine and the world. This is especially true in the area of international human rights law.
On March 15, Russia withdrew from the Council of Europe, finally declaring a departure from universal values and European standards for the protection of human rights and fundamental freedoms.
The citizens of Russia probably did not and do not understand what consequences this will have for each of them personally. They are probably happy to be out of the “control” of the international community. They still do not understand that this withdrawal from humane international standards may allow the return of unauthorized detentions, torture, lack of guarantees of the right to life, privacy, a fair trial, equality, and the protection of private property. In particular, President Vladimir Putin has signed of a law specifying non-execution of orders of the European Court of Human Rights (ECHR) issued after March 15, 2022.
This decision means the supremacy of Russian law over the decisions of the ECHR. What is more, provisions about the decisions of the ECHR being the basis for the annulment of court decisions that have entered into legal force, as well as for the resumption of criminal proceedings in the case of new or newly discovered circumstances, will be now excluded from the Code of Criminal Procedure of the Russian Federation.
Meanwhile the Speaker of the Federation Council of the Russian Federation, Valentina Matvienko, has said that the CIS countries (Commonwealth of Independent States – Russia, Belarus, Kazakhstan, Moldova, etc.) could create their own “non-politicized and objective” human rights court. Not long after that, Sergei Stepashin, chairman of the Russian Bar Association (RBA), claimed that the RBA is already working on the creation such a court: “We have now launched a mechanism for creating a working group. We have already been supported by law enforcement agencies, the presidential administration… there was a report on serious work to create an alternative court for the protection of human rights,” he said.
He also declared that “Russia did the right thing” by withdrawing from the jurisdiction of the European Court of Human Rights because the ECHR “made decisions based on political considerations, but not legal provisions.” What is more, he noted that the ECHR completely ignored claims from the so-called “Donetsk and Lugansk Republics”.
The ECHR has answered such declarations and allegations with actions. One week ago, the “Supreme Court of Donetsk Republic” handed down death sentences to three foreigners who served in the Ukrainian Armed Forces and defended Mariupol. One of them, Moroccan Brahim Saadun, later appealed to the ECHR to apply for interim measures.
The ECHR granted his request late last week, ordering Russia to ensure that Saadun’s death sentence is not carried out, that the applicant is not tortured, and that he receives all necessary medical care.
The Court invited Ukraine to comment on the case and to promote the applicant’s rights as much as possible for Ukraine to do in his situation. The ECHR also reminded Russia and the international community that the issue of Russia’s jurisdiction over the occupied territories of Donbas is being resolved by the ECHR itself in the case “Ukraine and the Netherlands v. Russia”, which the ECHR heard in January. However, this did not prevent the application of interim measures against Russia now, as its control over the Donetsk “puppet states” today is beyond doubt. The ECHR has given Russia two weeks to report on the steps it has taken to comply with the Court’s order.
As far a I can see, Russia has proved that democracy, the rule of law, and other basic principles of jurisprudence are in bad health in Russia these days. Russia cannot even provide its own citizens with normal access to a fair trial. If Russia succeeds in creating a new international human rights court, such a court will not make independent and unbiased decisions and, just like most Russian courts, will be fully under government control and influence. All together, it will only create more problems for ordinary people seeking access to justice, and will only open more avenues for government manipulation.