The annexation of Crimea: Continuing interference with rights guaranteed under the European Convention on Human Rights
By Sergiy Zayets, Legal Expert, Regional Centre for Human Rights (Kyiv) and Gaiane Nuridzhanian, PhD Candidate, University College London.
The annexation of Crimea, internationally recognised as part of Ukraine, by the Russian Federation in 2014 has inevitably affected the rights of the peninsula’s population, as guaranteed by the European Convention on Human Rights (ECHR, the Convention) to which both Ukraine and Russia are State Parties. This article focuses on situations that amount to a continuing interference with specific Convention rights in Crimea. It particularly discusses instances where the continuing character of an interference stems from the persisting and unlawful, under international law, presence of Russia in Crimea.
What is a ‘continuing situation’?
The European Court of Human Rights (ECtHR, the Court) defines a continuing or continuous situation as “a state of affairs which operates by continuous activities by or on the part of the State to render the applicants victims” (see, among many others, Oliari and others v Italy, paras 94-95).
Examples of continuing interferences with Convention rights include:
- inability to use and dispose of property while remaining its legal owner (Vasilescu v Romania);
- lack of access to property and to one’s home (Loizidou v Turkey);
- de facto expropriation (Papamichalopoulos and others v Greece);
- failure by a state to enforce a judicial decision in the applicant’s favour or to pay compensation for the loss of property provided for in domestic law (Almeida Garrett and others v Portugal);
- lasting restriction of freedom of movement (Antonenkov and others v Ukraine);
- state failure to effectively investigate allegations of breaches of the right to life or to freedom from torture and inhuman and degrading treatment, and to conduct an effective investigation aimed at clarifying the circumstances of disappearance of the person in life-threatening circumstances (Palić v Bosnia and Herzegovina);
- introduction and operation of laws constantly restricting the exercise of rights and freedoms guaranteed by the Convention (Parrillo v Italy).
Interference vs violation
A continuing situation that amounts to an interference with a right guaranteed by the ECHR does not per se constitute a violation of that right. Whether it constitutes a violation of the Convention right will depend on the compatibility of the continuing situation with obligations imposed on the state by the Convention with regard to a specific right involved. For example, in S.A.S. v France, a ban on publicly wearing clothes covering one’s face constituted a continuing interference with the applicant’s rights to respect for private life (Article 8 ECHR) and freedom to manifest one’s religion (Article 9 ECHR), but not a violation of these provisions. The ECtHR concluded that the ban was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.
The Court uses the term ‘continuing violation’ to refer to a continuing situation or interference that constitutes a violation of the Convention. The purpose of this article is to draw attention to the continuing character of situations amounting to an interference with a Convention right, rather than to discuss whether they constitute a breach of the Convention.
Defining interference as continuing for the purposes of the Convention may alter the application of certain admissibility rules. Specifically, the six-month time limit for lodging an application before the ECtHR starts to run only from the moment when the continuing interference ceases. The six-month rule does not apply to an ongoing continuing interference of the Convention against which no effective domestic remedy is available: in a situation of an ongoing breach, the time-limit in effect starts afresh each day. Nonetheless, the Court expects the applicants to act diligently and with initiative and to introduce their complaints concerning a continuing violation without undue delays (Varnava and others v Turkey, paras 159-172; Sargsyan v Azerbaijan, paras 124-148).
In the examples discussed below, the interference with the specific human right stems from the operation of the laws introduced by Russia in Crimea. In 2014, having occupied Crimea, Russia declared the peninsula part of its territory and introduced Russian law within the annexed territory. The interference with human rights continues to occur for as long as the laws of the annexing state are in place and could only be remedied by cessation of Crimea’s annexation.
Right to respect for private life
A right to nationality (similar to that enshrined in Article 15 of the Universal Declaration of Human Rights) is not guaranteed by the Convention or its Protocols. According to the ECtHR, however, it is possible that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact that such denial has on the private life of the individual (Kurić and Others v Slovenia). Neither is it excluded “that an arbitrary refusal of a request to renounce citizenship might in certain very exceptional circumstances raise an issue under Article 8 of the Convention if such a refusal has an impact on the individual’s private life” (Riener v Bulgaria, para 154; Alpeyeva and Dzhalagoniya v Russia, para 108).
In Kurič and others v Slovenia, the eight applicants had previously been citizens of both the former Socialist Federal Republic of Yugoslavia (the SFRY) and one of its constituent republics other than Slovenia. They had acquired permanent residence in Slovenia, but, following its independence, had either not requested Slovenian citizenship or had had their application refused. On 26 February 1992, pursuant to the newly enacted Aliens Act, their names were deleted from the Register of Permanent Residents and they became aliens without a residence permit. Some 25,000 other people were in the same situation. According to the applicants, none of them were ever notified of the decision to deregister them and they only discovered at a later stage that they had become aliens, when they attempted to renew their identity documents. The erasure of their names from the register had serious and enduring negative consequences: some of the applicants had become stateless, while others were evicted from their flats, were unable to work or travel, had lost all their personal possessions and had lived for years in shelters and parks. In the opinion of the Court, the situation of permanent deprivation of the applicants of the basic rights arising from their ‘erasure’ was of a continuing character.
The reasoning of the Court in the case of Kurič and others v Slovenia applies mutatis mutandis to the situation of forced citizenship. The forced imposition of Russian citizenship on the residents of Crimea can have significant impact on their private lives and can lead to their inability to exercise certain other rights. The latter may take the form of an obligation to carry out certain duties such as to serve in the army of the state of the enforced citizenship.
A specific example of limitation of rights is the situation of prisoners held in Crimea at the moment of annexation, whose requests to refuse Russian citizenship were disregarded. The prisoners were transferred to serve their sentences in Russia as Russian citizens, and are not able to return to Ukraine: the Russian authorities treat them as Russian citizens. It can therefore be argued that automatic imposition of Russian citizenship amounts to an interference with the right to respect for private life provided by Article 8 of the Convention. Moreover, it amounts to an interference of a continuing nature since, as a consequence, an individual is limited in his or her rights as long as the forced imposition of citizenship lasts, and the imposition stems from a law which has yet to be repealed.
Right to peaceful enjoyment of possessions in the context of Crimea
From 2014 onwards, in reality the ability to enjoy and dispose of movable and immovable property acquired under Ukrainian law by Crimean residents became subject to compliance with the conditions set out in Russian law. For instance, owners were required to register their vehicles in accordance with Russian laws. Failure to do so has, in some cases, resulted in administrative proceedings against the owner, and could also eventually lead to loss of driving licence. At the same time, registering a vehicle in Crimea under Russian law means it cannot be used in mainland Ukraine, where they are not legally valid. Local courts, acting as organs of the Russian Federation, have in numerous instances abolished ownership of property acquired before the annexation, and have repealed privatisation of land plots by individuals carried out under the laws of Ukraine before 2014 and transferred the land into the ownership of local authorities.
According to international law, Crimea remains part of Ukraine. Aside from any relevant rules of international humanitarian law that may apply in the situation, Ukrainian laws are the only lawful and valid rules that may govern ownership and use of possessions in Crimea. The laws introduced by Russia in Crimea cannot be recognised as valid and lawful. Neither are these laws to be attributed “legal validity for the purposes of the Convention” (see, for the same approach in a similar context, Orphanides v Turkey, para. 22). Consequently, decisions regarding use of property, abolishing the legal entitlement to a property and its seizure ought to be void, and should not affect, as a matter of law, the legal regime regarding the use of property of residents of Crimea, which should be based on Ukrainian law.
In the above examples, Crimean residents are prevented by Russian law from enjoying their possessions as they are entitled to do under Ukrainian law. For instance, vehicle owners face administrative penalty or confiscation of their driving license by the Crimean authorities as long as they keep the original (Ukrainian) registration of the vehicle, in other words as long as they continue to exercise their rights as entitled under Ukrainian law. At the same time, were they to comply with the registration requirements under Russian law, they would be physically prevented from using it in other parts of Ukraine. In the other example, a person who has acquired a land plot and continues to own it under Ukrainian law can no longer access or dispose of it because of local authorities’ (under Russian control) decision to seize the property. Actions of Crimean authorities essentially amount to preventing the person from enjoying, using and disposing of their property while the person remains its legal owner.
Right to liberty of movement and freedom to choose one’s residence
According to the case law of the ECtHR, interference with the rights guaranteed under Article 2 of Protocol No 4 can take the form of:
- limitation on the right to leave (Ivanov v Ukraine) or enter certain territory (Timishev v Russia);
- prohibition to visit an area (Hermanus Joannes Van Den Dungen v the Netherlands) or to settle in a particular place (Garib v the Netherlands);
- seizure of one’s passport or another identity document required to be able to leave a country (Napijalo v Croatia);
- requirement to register one’s place of residence with the police (Tatishvili v Russia) or to report to the police every change of place of residence or every visit to family or friends (Denizci and Others v Cyprus);
- compulsory residence orders (De Tommaso v Italy); and
- prohibition on unauthorised leaving the place of residence (Luordo v Italy).
Interference under Article 2 of Protocol No 4 can be of instantaneous as well as continuing nature. The continuing character of an interference with freedom of movement can usually be inferred from the circumstances of the case examined by the ECtHR. In certain cases, the Court has addressed the issue more directly. In Riener v Bulgaria, a ban on leaving Bulgaria was imposed on the applicant in 1995 in connection with unpaid taxes. The ban was in force continuously until 27 August or 1 September 2004. In the opinion of the Court, this amounted to a ‘continuous situation’ (paras 101 and 103):
“[T]he fact that the travel ban was periodically re-confirmed and that several sets of proceedings ensued” did not, in the Court’s view, change the continuing nature of the interference since “the events complained of were [not] composed of separate and unrelated occurrences so that a fresh six months’ period should start to run after every relevant decision”.
para. 101, Riener v Bulgaria
Similarly, the Court considered that, in the particular circumstances of Khlyustov v Russia, a series of six-month travel bans imposed on the applicant by the bailiff’s service created a continuing situation of interference with freedom of movement. Consequently, the six-month term for lodging the application with the Court started not after each and every six-month travel ban expired but only after the situation as a whole came to an end (para 62). At the same time, the Court’s reasoning in the abovementioned cases does not exclude that, depending on the particular circumstances of the case, a series of travel bans may not necessarily create a continuing situation.
The occupation of Crimea has inevitably affected the freedom of movement and freedom to choose a residence (Article 2 of Protocol No 4 ECHR). (Since Crimea is part of the territory of Ukraine, the right to enter or leave the territory of Crimea falls within the scope of Article 2 of Protocol No. 4. It is not governed by Article 3 of Protocol No. 4, which relates to expulsion outside the territory of one’s state.) Examples of interference with these rights identified by the Regional Centre for Human Rights (an NGO based in Kyiv), include:
- travel bans imposed on Ukrainian citizens in Crimea by bailiffs’ service;
- expulsions of Ukrainian citizens from the territory of Crimea;
- ban or other prohibitions on entering or leaving the occupied territory (either by Ukraine or Russian Federation);
- compulsion to leave the occupied territory as a result of policies implemented by the Russian Federation in Crimea;
- stripping residents of Crimea of documents issued by Ukrainian authorities; and
- the requirement to obtain a residence permit for Ukrainian citizens who continue to reside in Crimea but have refused to adopt Russian citizenship.
One further example of an interference with freedom of movement in the context of Crimea is preventing an individual from either entering or leaving the peninsula. A one-off refusal to allow a person to cross the administrative border between Kherson Oblast and the Autonomous Republic of Crimea may resemble an instantaneous interference. It may also seem that an individual concerned can overcome the hurdle by, for instance, presenting the necessary documents. However, where the refusal stems from a ban imposed on a particular person or for a specific group, or a system of restrictions operating on a constant basis, the interference with the person’s freedom of movement in the territory of Ukraine will be of continuing nature. For instance, expulsion of an individual from Crimea results in a five-year ban on entry into “the territory of the Russian Federation”, which in the views of the authorities controlling entry into Crimea includes its territory. This will amount to a continuing interference with freedom of movement that will end only when the ban is lifted.
Another example of continuing interference with freedom of movement and the right to choose one’s place of residence in Crimea is making the right to stay and reside in Crimea subject to compliance with certain conditions. In particular, those Ukrainian citizens who have renounced Russian citizenship, which was imposed on the population of Crimea, can only continue to reside in Crimea if they obtain a residence permit. Issue of the permit depends on the discretion of the local authorities; it is limited in duration and is subject to compliance with certain conditions, such as sufficient income and living in Crimea most of the time. Failure to comply with these conditions as well as committing two administrative offences may lead to annulment of the residence permit.
The annexation of Crimea by the Russian Federation has forced many residents to leave the peninsula for other parts of Ukraine. They have left Crimea because of their unwillingness to be subjected to Russian control and law, to suffer the consequences of Russian policies in Crimea, and to face the effects of the occupation in Crimea. As long as Russia’s presence in Crimea persists, these persons will not be able to freely return to their place of residence in Crimea or to choose to settle in Crimea. They are therefore continuously restricted in their freedom to choose a place of residence in their own country.
The instances of continuing interference in connection with Crimean annexation that are likely to be put before the ECtHR concern the rights to peaceful enjoyment of one’s possessions, freedom of movement, freedom to choose one’s place of residence, and respect for private life.
In a situation of ongoing continuing interference, such as those occurring in the Crimean context, for which no effective remedy is available, the six-month rule for lodging an application before the ECtHR does not apply. The applicants do, however, have a duty of diligence and initiative when complaining before the Court of an ongoing interference, which aims to ensure legal certainty in proceedings before the Court. Failure to comply may result in an application being declared inadmissible for being lodged out of time, and not therefore being considered on its merits. However, the exact nature of the duty of diligence and initiative will depend on the particular circumstances of the case.