The uncontrolled territories of Donbas are controlled by the Russian Federation, but at the same time, Ukraine must think about better ensuring human rights in these areas. The Parliamentary Assembly of the Council of Europe adopted such resolution (2209) on the second day of the spring session, on April 24. What recommendations were given to Ukraine and what is important for us in this document?
What is this resolution?
It’s a resolution called "State of emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights". This article allows the country during the war or other public danger that threatens the life of the nation to back away from its obligations under this Convention if such measures do not contradict its other obligations under international law.
For now, three countries - Ukraine (after the Russian Federation's invasion in 2014), France (after the terrorist attacks in 2015), Turkey (after an attempted coup d'état in 2016), have used this opportunity.
At the same time, the PACE points out some problems that arose in these countries after a step away from the Convention. We will concentrate on Ukraine.
PACE’s concern regarding Ukraine’s step away from Convention on Human Rights
The resolution states that Ukraine notified the Secretary General of its derogation on 9 June 2015. It stated that the “public emergency threatening the life of the nation” consisted of the “ongoing armed aggression of the Russian Federation against Ukraine, together with war crimes and crimes against humanity committed both by regular Armed Forces of the Russian Federation and by the illegal armed groups guided, controlled and financed by the Russian Federation”. Ukraine's derogation concerns four specific laws adopted on 12 August 2014. It extends only to certainly specified localities in the Donetsk and Luhansk oblasts. The notification specifies the Convention rights from which Ukraine derogates and indicates the nature of the circumstances in which the derogation may be withdrawn.
In regard to this, the Assembly expresses concern:
- The Assembly is concerned about the provision in one of the Ukrainian laws permitting preventive detention for up to 30 days. Whilst this provision seems not to have been applied, its potential duration may be disproportionate, the document states.
- The Assembly is also concerned about the manner in which some of the other laws have been applied, in particular administration of and material conditions at the crossing points between government-controlled and non-government-controlled territory…
- …and the functioning of courts transferred from non-government-controlled territory to government-controlled territory.
PACE recommends Ukraine:
- reconsider the utility and hence the necessity of maintaining the provision on the 30-day preventive detention, which the Constitutional Court should be given the opportunity of examining;
- make further efforts to enhance material conditions for people in the Donetsk and Luhansk regions using the crossing points between government-controlled territories and territories temporarily under the effective control of the Russian authorities;
- make further efforts to ensure the proper functioning of and sufficiency of resources for courts transferred from territories in the Donetsk and Luhansk regions temporarily under the effective control of the Russian authorities;
- ensure that parliamentary scrutiny of the emergency measures is sufficient and effective;
What’s the importance of this resolution for Ukraine?
On one hand, the PACE has scolded Ukraine for the disproportionate and unjustified nature of certain measures in the Donbas conflict zone, given the situation that has developed. On the other hand, it acknowledged that the Russian Federation controls the territories of Donbas that are not under control of the Ukrainian authorities. The wording was changed from "government-uncontrolled territory" to "regions that are under the actual control of Russian authorities" (territories in the Donetsk and Luhansk regions temporarily under the effective control of the Russian authorities). The PACE voted almost unanimously for this amendment, introduced by the Ukrainian delegation.
In addition, the Assembly confirmed the condemnation of Russian aggression against Ukraine, its violation of international law and the principles of the Council of Europe.
As the Poroshenko Bloc deputy and a member of the Ukrainian delegation in the PACE Oleksiy Honcharenko notes, the voted amendment will increase chances of Ukraine in the European Court of Human Rights regarding suits against Russian Federation.
"The main result for us yesterday is that today there are grounds for the European Court of Human Rights (ECHR) to make decisions against Russia based on the fact that Russia controls (and this is recognized by the PACE) the territories of Donetsk and Luhansk regions," he believes.
We will only add that the PACE decisions have a recommendatory character. Therefore, there are no guarantees that the Russian Federation (and even Ukraine) will react instantly to the resolution and begin to follow all the points on the points.