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Resolution 2133 (2016) Provisional version
Legal remedies for human rights violations on the Ukrainian territories outside the control of the Ukrainian authorities
1. The 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”).
2. It 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).
3. The “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.
4. Under 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”.
5. Regarding 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.
6. Both 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.
7. Victims of human rights violations have no effective internal
legal remedies at their disposal:
7.1. as
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;
7.2. as 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.
8. In 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 recent decision of the Supreme Court of the
Russian Federation on banning 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.
9. Moreover, in accordance with reports of authoritative international
and non-governmental organisations (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.
10. In 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.
11. Numerous 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. The legal and humanitarian
situation of ordinary detainees sentenced to prison terms before
the conflict (about 5 000 persons in the “LPR” alone) is unacceptable: decisions
by the 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. 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.
12. The Ukrainian authorities have begun prosecuting alleged perpetrators
of war crimes and other human rights violations on the side of pro-government
forces.The Assembly takes note of the constructive co-operation
of Ukraine with relevant international monitoring mechanisms, such
as the European Committee on Prevention of Torture and the United
Nations Subcommittee on Prevention of Torture, 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.
13. The 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.
14. Regarding 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.
15. The 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 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.
16. 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 co-operate fully with the criminal investigation in order to
bring those responsible to justice.
17. The Assembly therefore urges:
17.1. the competent authorities, both in Ukraine and in the
Russian Federation, to:
17.1.1. effectively
investigate all cases of serious human rights violations allegedly
committed in all areas under their effective control;
17.1.2. prosecute their perpetrators, thereby also discouraging
any such violations in future;
17.1.3. compensate their victims to the extent possible;
17.1.4. accede to the Rome Statute of the ICC;
17.1.5. fully implement the Minsk Agreements;
17.2. the Russian authorities to:
17.2.1. end 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 people and to enable the re-establishment of
the rule of law in the whole of eastern Ukraine;
17.2.2. meanwhile, 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;
17.2.3. facilitate the independent monitoring of the human rights
situation in all Ukrainian territories under their effective control,
including Crimea;
17.2.4. 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 people to choose their own self-governing
institutions;
17.2.5. 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;
17.2.6. 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;
17.2.7. 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 circumstances, found themselves under the
control of the Russian Federation in Crimea;
17.3. the 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;
17.4. 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;
17.5. the 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;
17.6. the ICC to exercise its jurisdiction to the extent that
is legally possible following the declarations filed by Ukraine.
18. The 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.