Ukraine's Commissioner for European Court: Russian actions show signs of genocide

On June 12, Strasbourg hosted a regular hearing of Ukraine's lawsuit against the Russian invasions of 2014 and 2022. Based on the results of these hearings, we can already say that the European Court of Human Rights has legally confirmed that Russian troops were in Crimea and Donbas in 2014.

For Ukrainian society, the very fact that this needs to be confirmed looks rather absurd, but this is how international law works. For eight years straight, Moscow has been actively manipulating the fact that Ukraine's statements about the Russian presence in Donbas are populism that is not legally supported. Hence, in 2022, the well-known phrase of Russian propagandists "Ukrainians have been bombing Donbas for 8 years" surfaced, which they used to justify their invasion. Now the fact that Russian troops invaded Donbas and Crimea in 2014 has been proven in international institutions.

– Recently, in Strasbourg, you represented Ukraine's interests in the ECtHR concerning the Russian invasions of 2014 and 2022. What were the results?

– To begin with, one should understand that this is one of the intermediate but important steps toward the result, the ECtHR judgment in the interstate case Ukraine and the Netherlands v. Russia. The case concerns human rights violations in the temporarily occupied territories of the Donetsk and Luhansk regions since the spring of 2014, as well as violations of rights since the invasion in 2022. In general, the ECtHR has a rather specific process for considering cases, so I need to tell you a little bit of history.

This lawsuit is not something new for Ukraine, it is a lawsuit that dates back to 2014, when Russia was actively seizing Crimea, and then the events spread to the Donetsk and Luhansk regions, where human rights violations also occurred. Even then, we filed lawsuits and informed the European Court that Russia was seizing our territories.

This is all accompanied by a whole system of human rights violations. So we were not talking about some isolated cases, but about the fact that at certain points there is a policy aimed at persecuting, for example, Ukrainian journalists, Ukrainian activists - anyone who is dangerous to the Russian Federation.

We filed an interstate lawsuit to the ECtHR. Interstate cases have several stages of consideration. There was an admissibility stage, which we have already passed. In January 2023, the European Court issued an interim but important decision on admissibility, which stated that Ukraine's complaints were admissible. We tried to prove that after Crimea, the aggression moved to the eastern regions of Ukraine and Russia seized these territories.

This was very important because we remember that there was a discussion in the expert community for some time about whether Russian troops were involved in this armed conflict. The most obvious situation that proved this was the Ilovaisk tragedy. At that time, everyone realized that the conflict had international features. But our goal was to prove that this was not the case, that it was an international conflict from the very beginning, starting with Crimea. We proved this to the European Court.

If we go back to these events, Russia said that these were purely political statements made by Ukraine. My favorite phrase is "They are not there". We proved that this is not true. It was in January 2023, in the admissibility decision. After the European Court found that the Russian Federation was responsible for the violations that took place in the occupied territories, the next step was to consider the complaints on the merits. The European Court proceeded to consider whether certain complaints about legal violations in these occupied territories were proven.

Marharyta Sokorenko (photo: RBC-Ukraine)

In 2023, after this admissibility decision in February, the European Court added the last interstate lawsuit, Ukraine v. Russia, from 2022, which concerned a full-scale invasion. Moreover, we did not file this case as a separate one, we wrote to the ECtHR that this was the next stage of Russian aggression. The European Court eventually merged all these proceedings, and we provided all the necessary evidence.

On June 12, the merits hearings were held in Strasbourg. At these hearings, we presented our position that the Russian Federation has been violating human rights in the occupied territories since 2014. This position is supported by numerous pieces of evidence, and these are not individual violations, they are systemic. It is a whole system of massive, repetitive systematic human rights violations that not only take place and no one responds to them, but they are tolerated and sometimes coordinated by the Russian Federation.

A striking example, which we cited during the hearings, is the violations against prisoners of war. The vast majority of POWs were tortured in captivity. For example, we said that when the Russians captured the military after Ilovaisk, they took them to the streets of Donetsk and organized "parades". They took them among an aggressive crowd that not only verbally but also physically attacked them.

The second example is Olenivka, the place where our military was held, and they simply destroyed the place along with them. And the attempt to hold show trials. If we recall, after Olenivka they tried to hold some trials of our soldiers...

– In Mariupol, they wanted to do this.

– Yes, they even posted some photos on their Telegram channels of them setting up cages somewhere on stages as if they wanted to lock up prisoners and hold "trials" there. We cited these examples to show that this is not just some isolated cases, it is a whole system. This is a whole method of torture.

– And what is it aimed at? Are they trying to get information this way, or are they torturing for fun?

– I think it's both, and an equally important factor is just a desire to mock. I know this is my personal impression. But we have been working since 2014 with interstate lawsuits, we have talked to a lot of people who have been held captive. There is a lot of evidence that the Russians did not just want to get information, they like to mock.

– What about the civilian population, what are the legal violations of their rights?

– These are violations of the rights guaranteed by the European Convention on Human Rights. These are the right to life, the prohibition of ill-treatment and torture, the right to liberty and security of person, and the right to respect for family life. There are various aspects, including searches and filtration measures. A separate aspect is the abduction of Ukrainian children and their transfer to the territory of the Russian Federation. Enormous efforts are being made to gradually return at least some of our children. And this did not begin with the full-scale invasion, it began in 2014.

This has also been part of our lawsuit since 2014. Back then, we were aware of several cases when the so-called representatives of the DPR and LPR (self-proclaimed Russian-backed Donetsk and Luhansk People's Republic - ed.) abducted orphans. After Ukraine tried to take them to the territory under its control, they abducted them and took them back to the Russian Federation. Then Ukraine managed to return several groups of children, but it was very difficult to find them.

Now we are in 2022 when not only orphans but also children who have parents, guardians, and grandparents fall under this category. Children who have been taken to the occupied territories since 2022 under various pretexts - either for summer vacations or medical treatment, and then their parents could not return them. According to preliminary official estimates that we received, there are about 19,000 children there - this is what has been confirmed. But the numbers could be much higher.

Besides, there is freedom of expression, protection of property, freedom of movement, discrimination, the ban on the Ukrainian language, and the change of our education system from Ukrainian to Russian. Unfortunately, we see a lot of crimes that take place every day in the occupied territories, and this is the subject of an interstate case in the ECtHR. We emphasized that there was a whole system of violations and this system was created by the Russian Federation.

In fact, at these hearings, we emphasized to the European Court that human rights violations were not just a consequence of a dispute, a conflict between Ukraine and Russia over territory. We emphasized that this war was Russia's way of not just undermining Ukraine as a sovereign state, but destroying it as such. These are, in fact, very loud statements, but we are talking about what is happening.

Marharyta Sokorenko (photo: RBC-Ukraine)

– Because it is true.

– Yes, it is, and we are trying to prove it to the ECtHR.

– Do they hear us, do they understand?

– We will see it in their decision.

– And when will this decision come?

– We need to understand that the European Court is a court that does not have a timetable for delivering judgments. We should not wait for it for a week or two or a month. The array of evidence that the European Court has received is truly large both in geographical and time dimensions. It will take some time to analyze and evaluate it. I have hopes on my part that we will not have to wait for years, because after this meeting, after the hearings, the ECtHR immediately went to the conference room to prepare a decision on the case. We are now waiting for the decision of the European Court.

In fact, I have positive expectations, and I'll tell you why. A year is a positive expectation because other countries have been waiting much longer for a decision in interstate cases. At the same time, both the period of events and the scale of violations were much smaller. For example, the consideration of the case on the merits in the case of Georgia v. Russia in the European Court of Justice has been going on since 2014. In our country, it has been going on since 2023.

Besides, I am optimistic because of the speed of the process in another interstate lawsuit in the ECtHR, Ukraine v. Russia (re Crimea), which concerns Russia's violations of human rights during the seizure of the Autonomous Republic of Crimea and the city of Sevastopol. In this case, the ECtHR has also already issued a decision on admissibility in January 2021, where it confirmed that Russia seized Crimea by force, rejecting the Russian version of "self-determination of the inhabitants of Crimea". Last year, in December 2023, the ECtHR held a merits hearing of this case, and next week, on June 25, it will publicly announce the decision.

– What does a positive decision mean for us?

– This is a decision that the European Court recognizes the proof of Ukraine's complaint that there were human rights violations in the occupied territories by the Russian Federation and during the full-scale invasion.

– What does this mean for us?

– The main thing is that we will have a confirmed legal fact by an international judicial institution. This seems very absurd to us - daily victims of armed aggression. It is strange for us to prove all this, but it is still a legal process. It will give us not only a legal basis. This decision will give us more arguments for our foreign policy, and for the work of our diplomats. In other words, their arguments to our allies will be based on legal facts, such as how the armed aggression took place and what violations took place. There will be no need to prove anything more.

This may also be important for the Special Tribunal that Ukraine wants to create. It is also important for other jurisdictions. We are not forgetting about the International Criminal Court, which, by the way, has an arrest warrant for Putin and Lvova-Belova for abducting children during the full-scale invasion. Although these are different jurisdictions and different courts, when one of them pronounces a legal fact, it is already important for another court.

And to be honest, I remember very well the time before 2022, when we said at various forums, platforms, and international communications with partners that Russia was carrying out armed aggression against us, violating the rights of people in the occupied territories, and not allowing international observers. Meanwhile, representatives of the Russian Federation, when it was still an active participant in various platforms, including the Council of Europe, said that these were just political statements and that this had not been proven anywhere. So now it has been proven. We already have legal facts confirmed by an international court, and there is no getting around them.

– Will this somehow hit Russia now? Or will they simply ignore it because of their policy of isolationism?

– There is one very unobvious thing. Russia is trying to pretend that these cases do not affect it, but in fact they are afraid of these decisions of international courts. Because it is very difficult to rewrite or forget them. We know how Russia likes to create its own reality, its own alternative history. These decisions are international, they cannot be corrected, and they are very important.

It is not for nothing that Russia took several internal steps to avoid complying with the European Court's rulings before it was expelled from the Council of Europe. These steps were very big. Now they are saying that the European Court is biased, politicized, guided by someone, and wants to slander Russia.

But there is one argument. The European Court has the largest number of interstate or individual lawsuits against Russia regarding interference in the internal affairs of countries. In such cases, the largest number of judgments are not in favor of the Russian Federation, and the ECtHR has confirmed human rights violations. This applies to both large cases - Transnistria and Georgia - and individual cases. These are lawsuits concerning murder, kidnapping, and espionage.

Marharyta Sokorenko (photo: RBC-Ukraine)

The European Court sees everything, and our task was to show the entire large-scale system of violations that are taking place during the armed aggression against our country. We wanted to record this so that the European Court's decision could then reinforce all other decisions. For example, on the international register of losses, which is now being gradually launched.

– As for the violations that we record, they can probably be grouped by one clear sign - discrimination on a national basis. The Russians are systematically destroying an ethnic group by seizing its territory. We say that this has features of genocide, but our allies do not want to agree with this wording. Do you think this can be called genocide?

– Through the prism of my experience over the years, I can say that I believe that the actions of the Russians have signs of genocide. We just see that this is not a one-time genocide. This is not some kind of massive, rapid armed aggression. Russia's aggression against our country since 2014 has shown that aggression itself can be non-classical, not the kind we are used to seeing or reading in history books.

Nowadays, there are different ways of waging war, so we talk about hybrid warfare. I think these cyberattacks are one of the strongest elements of warfare.

– Propaganda.

– This is a separate story. By the way, in the case of the seizure of Crimea, it was the first thing we drew the European Court's attention to, indeed in our lawsuit Ukraine v. Russia (re Crimea), that when the Crimean peninsula was seized, TV and radio broadcasting was immediately cut off from the mainland of Ukraine. Ukrainian journalists were also among the first targets of attack during the seizure of Crimea. It was done precisely to cut off all information from Ukraine and replace it with Russian propaganda.

The crime of genocide, in my opinion, is also changing. I believe that if the European Court recognizes all the violations we have discussed in its decision, this may also help in the future to confirm the signs of genocide against Ukrainians.

– Are you adding to your lawsuit the lawsuits filed by Ukrainians themselves against Russia?

– These are different processes. In the European Court, most lawsuits are individual. These are from citizens or legal entities, private legal entities. Our interstate lawsuits are a little different. Ukraine as a state complains in them not about individual incidents, but about the administrative practice of human rights violations by Russia.

According to the latest information we have, this year about 6,000 individual lawsuits concern human rights violations during the armed aggression of the Russian Federation. People decide for themselves whether to complain or not, or whether to use other mechanisms. While searching for witnesses to testify in the interstate lawsuit, we talked to different people, some of whom were just witnesses to certain violations or certain events, some of whom were victims.

And not all of them actually apply to international courts, they applied, for example, to national authorities, just to record the facts. Here I can give you some advice: if you are a witness of rights violations or, unfortunately, a victim, the first place to go is to law enforcement agencies to have it recorded in our national proceedings, because then, in the future, it will be transferred, recorded here, investigated and transferred to the International Criminal Court, which is about personal responsibility, because our ECtHR is about state responsibility.

– Do you think this ECtHR decision will be important for the Russian leadership?

– I am sure that they realize that these are rather bad processes for them. I can tell by Russia's behavior. They are very well aware of how negative these processes are and have always tried to show that they have nothing to do with it. And now they seem to have nothing to do with the court proceedings at all because they do not cooperate with the European Court, although, by the way, they have this obligation. Not only do they not cooperate, they do not even respond to letters from the European Court. They receive everything, they know about our cases, about the complaints we file. So, later they will not be able to say that they were not involved in this process.

– We can say that the ECtHR's decision that Russian troops have been in Donbas and Crimea since 2014 has literally devalued the Russian propaganda phrase "bombing Donbas for 8 years".

– Yes, the European Court has already zeroed it out. If you read the admissibility decision in the case of Ukraine and the Netherlands v. Russia, it starts with the fact that the government of Ukraine proved that the Russian military or persons affiliated with it had already been in eastern Ukraine since at least April 2014. And that since May 11, 2014, when they held the so-called referendums there, the Russian Federation has gained jurisdiction over the occupied territories and is therefore fully responsible for all violations. When Girkin-Strelkov, Zakharchenko, and so on went there, they said that they were doing it "of their own free will," but in fact they were special services. In the case of Zakharchenko, they were.

There was also an economic component, political support, and humanitarian support. All of this together confirms that Russia fully controlled everything from all sides, did everything, and created a vertical of occupation authorities. This is entirely its responsibility.

– Ukrainians are also filing lawsuits against Ukraine itself in the ECtHR, which opens up certain problems in Ukrainian legislation. What are they?

– The lawsuits against Ukraine are long-standing, some decades old. And the problems they point out have also been developing for many years. We had a history of problems with the detention procedure. For example, the story of detention without a court decision, without a ruling of the investigating court, prolonged detention. Very often it is about failing to provide sufficient arguments and the validity of the decision by national courts. The conditions of detention in our detention facilities are pre-trial detention centers and colonies. This problem requires a set of changes, and the Ministry of Justice is working in this area. In general, it is not only about improving conditions but also about more humane detention and better resocialization.

The length of proceedings, the lengthy consideration of cases by the courts, is also a problem now, which has probably increased due to the invasion because we have a large number of courts and institutions that have been destroyed or damaged. We also have a very strong staff shortage, a large shortage of judges at the moment.

– There is also the issue of bail. Very often we see how the court can refuse the public prosecutor a bail amount because there is a relevant practice of the ECtHR to regulate this bail, they say, it should be a sum that the suspect can pay. But doesn't it seem that the ECtHR does not fully understand the context of the time in which we are now? I mean, we are at war, and all the corruption crimes that we have are corruption during the war.

– The ECtHR understands everything. However, the ECtHR does not specify the level of bail. It says that any decision must be properly justified. And we often have a problem with justification. There are various complaints to the European Court that the bail is more than the suspect can pay. We had a case in which an official was once detained for taking a bribe of $200, and the bail was hundreds of thousands of hryvnias. And there are examples when the bail was in the millions, and they complained that it was an excessive burden for the person, but he or she actually paid it.

But the question is not about a specific amount and that its amount cannot be determined more or less, because the ECtHR said so. The question is how reasonable this particular amount is. Therefore, it depends on the case.

– As a lawyer who works with international cases, what is your opinion on whether we will be able to convict the Russian trio - Putin, Lavrov, and Mishustin? Because they have immunity, and some international experts say that Putin can be convicted after he stops running Russia. So, obviously, never.

– Everything is possible, but it requires determination and courage. Ukraine has it, but our partners also need it. We are the ones who live through it all. Unfortunately, 2022 has shown that the preventive deterrence that existed at the international level is not effective enough. Especially given the kind of war being waged against us.

When we filed the first international lawsuit against Russia in 2014, I was told that we would never get such decisions, but we have already received interim results. We were told that we were very strong dreamers, but the result exceeded expectations. That's why I am the dreamer in these stories.

If we talk about the fact that we will be able to convict Putin only after he dies, this is historical justice and it also matters. But, to be honest, I would like justice to be faster for those who offend Ukrainians. We have quite ambitious goals, and it is probably better to be a dreamer and set ourselves such a bar to achieve the maximum in these goals. Then it gives its results.