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As Ukraine’s Conflict Grinds On, Lawyers Take to the Frontline
19 December, 2019
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Nina Branovytska, the mother of deceased Ukrainian soldier Ihor Branovytsky who defended the Donetsk airport. Konstantin Chernichkin / Kyiv Post

Illegal detentions, torture, forced labor - in Ukraine, lawyers are working on over 4,000 cases aimed at getting justice for people whose human rights have been violated amid the country’s bitter conflict with Russia.

Some lawyers work in business centers with breathtaking views over their cities.  And some work in a residential house built 100 years ago in a quiet neighborhood of the Ukrainian capital, Kyiv.

Set in a cosy city garden with a few benches, the house looks like a retirement home for elderly people. But one of the flats inside is an office used by young lawyers representing clients fighting for justice amid the continuing military conflict in Ukraine.

READ MORE: Zelenskyy Lists Steps to Regain Control Over Donbas

Most often these clients are suing a state, and often it is Russia – an aggressor country from Ukraine’s point of view. Nowadays, Ukraine and Russia are rivals in many arenas: political, informational, military, and also in international courts like the European Court of Human Rights in Strasbourg.

The cases they work on range from suits on behalf of people imprisoned in Crimea after it was annexed by Moscow and then taken away to jails in Russia itself and detainees who were abused in Russian-backed separatists’ custody and made to do forced labor, to less dramatic violations of human rights like residents of Crimea who were denied access to their Ukrainian bank accounts after Moscow seized control over the peninsula in 2014.

As Ukraine embraces European values, human rights lawyers in the country have become increasingly active in their attempts to tackle the harsh violations that have resulted from the annexation of Crimea and the ongoing armed conflict with separatists in the eastern Donbas region of the country.

The vast majority of these Ukrainian lawyers put the blame for conflict-related violations of human rights on Russia – but ironically, they help their clients sue Ukraine as well, because that offers an easier route to obtaining compensation.

READ MORE: "People in Donbas Don't Think It's Their War" - Former OSCE Rep Hug

Anastasiya Martynovska is one of the young lawyers working in the old house in Kyiv.  While talking about her work, she looks after her baby child. Martynovska founded the Regional Centre for Human Rights back in 2013, and it was initially located in the Crimean port city of Sevastopol, which at the time was still a double-flagged navy base for both Russia and Ukraine.

In its first months, the Regional Centre for Human Rights was involved in “representing citizens’ interests at the European Court of Human Rights on various cases. Those were totally different applications, and we concentrated on aiding in drafting applications and handling the cases,” recalled Martynovska. 

But in 2014, Martynovska and her colleagues had to leave Sevastopol because their hometown, like the rest of Crimea, was occupied by Russian troops. Crimea was then annexed by Russia and incorporated into its legal system.

READ MORE: The Cost of Crimean Annexation is Life: Special Project

The international community did not recognise the annexation and imposed sanctions on the Russian Federation. Despite the international reaction, Russia managed to establish its legal regime on the peninsula. That is when the Regional Centre for Human Rights left Crimea and eventually settled in the building in Kyiv – and its caseload started to grow.

Discrimination, persecution, disappearances

By the beginning of 2018, the European Court of Human Rights was handling 4,226 cases connected to the conflict around the Crimean peninsula and the eastern Donbas region.

Most of them - 3,000 cases - were filed against Ukraine, 257 against Russia, and in 208 cases both Russia and Ukraine act as co-respondents, according to then-Ukraine’s deputy minister of justice, Ivan Lishchyna.

READ MORE: UN Reports Torture From Both Sides in the Donbas

Lishchyna wrote in his annual report on human rights in the country that as of December 31 last year, the Ukrainian state was a respondent in “more than 4,000 cases against Ukraine concerning violations of the applicants’ rights in the Autonomous Republic of Crimea and on the temporarily occupied territories of the Luhansk and Donetsk oblasts [regions in the Donbas area]”.

The European Court of Human Rights and the responding countries must keep the details of the cases confidential. Some plaintiffs also prefer not to make their cases public. That means that limited information is publicly available about cases from Ukraine that are being handled by the Strasbourg-based human rights court.

Martynovska and her colleague at the Regional Centre for Human Rights, Viltaliy Nabukhotyny, describe the Crimean situation as unique. This is because“since World War II there has been no annexation before the Crimean one in the world”, Nabukhotny explained.

It is always a challenge for lawyers to be the first in a situation which nobody has faced before. In order to deal with this, the centre’s experts have “produced a good analytical database, looked into historical precedents, international mechanisms, [and thought about] necessary changes for Ukrainian legislation under the current conditions”, Martynovska elaborated.

Nabukhotny is glad he can refer to theory, but regrets that similar case law and practical experience are not to be found: “Certain issues have been resolved on paper, but there is zero amount of case law.  The problem is that actually many applications [to the European Court of Human Rights] refer to issues which have not been considered by international courts in such a context.”

READ MORE: Donbas - The New Exclusion Zone

The Strasbourg court is facing its own challenges too. Ukrainian deputy justice minister Lishchyna, who worked for the European Court of Human Rights from 2002 to 2008, explained that although the European Convention on Human Rights has been applied to armed conflict situations before, “it has not been applied a single time to ongoing, large, inter-state military conflicts”. 

At the Ministry of Justice, Lishchyna was responsible for representing Ukraine’s interests at the European Court of Human Rights. His office at the ministry had a large, cluttered desk that highlighted the fact that he was working on dozens of cases simultaneously. 

In her foreword to the book ‘The Use of Force against Ukraine and International Law’, legal scholar Leila Sadat from the University of St. Louis described Russia’s occupation and annexation of Crimea as “rapid” and accepted that “the numbers of specific violent crimes are not high”.  

But Sadat also said that “the overall impact of Crimea’s integration into the Russian Federation has been enormous, causing financial and psychological harm in addition to the specific harms”.

She said that these included alleged discrimination (against those refusing to accept Russian citizenship), persecution (of those opposing the annexation), as well as disappearances, killings, ill-treatment, forced conscription, the deprivation of the right to a fair trial, the seizure of property, the transfer of population from the Russian Federation, and the harassment of the Crimean Tatars, an ethnic minority group that made up 12 per cent of the population of the peninsula, according to the most recent census in 2001.

READ MORE: Behind the Battle for Students of Occupied Donbas

The prosecution at the International Criminal Court has conducted a preliminary examination into allegations made by Ukraine and established that enforced disappearances in Crimea have been happening since the Russian annexation in 2014, as well as cases of torture, forced conscription to the Russian Army, deprivation of rights to a fair trial, deprivation of liberty, persecution and seizure of property. Parts of the population of Crimea were moved to Russian territory and vice versa.

As for eastern Ukraine, there were killings of civilians, civilian infrastructure was heavily damaged and destroyed, and there was torture and sexual and gender-based crimes, according to the prosecution.

However, Moscow had already announced it was cutting its ties with the International Criminal Court and removed its signature from the founding treaty after the court’s lead prosecutor issued a report saying that the conflict in Ukraine was “an international armed conflict between Ukraine and the Russian Federation”, which the Kremlin denies.

Ivan Lishchyna, Government Agent before the European Court of Human Rights. Photo: Konstantin Chernichkin / Kyiv Post

Forced labor under fire

While Martynovska and Nabukhotny at the Regional Centre for Human Rights work for clients and cases originating from Crimea, Vitalia Lebid of the Ukrainian Helsinki Human Rights Union concentrates on human rights violations in the Donbas region during the ongoing conflict.

Lebid and her colleagues from the Ukrainian Helsinki Human Rights Union work from another residential building in Kyiv – a Soviet-style block with a maze of corridors leading to tiny rooms where lawyers handle cases for clients who are petitioning the European Court of Human Rights.

The Ukrainian Helsinki Human Rights Union’s lawyers have so far submitted about 60 cases to the European Court of Human Rights related to violations of human rights in Donbas. In 2014-2015, this part of Ukraine endured open warfare between the Ukrainian Army and volunteer military units on one side against Russia-supported separatist forces and, allegedly, Russian regular troops on the other hand. The fighting has subsided since then but sporadic violence continues.

READ MORE: Donbas Reality Check - How Locals Make a Living in Frontline Ukraine

Igor Oprya is a client of Lebid. He was taken hostage on May 2, 2014 while traveling from Kyiv to visit his parents in Ukraine’s east. This was the point at which several Ukrainian regions were trying to break away from the central government in the aftermath of the pro-Western EuroMaidan revolution.

Back in 2014, Oprya was a student and his parents applied to the European Court of Human Rights while he was still in captivity.

He remembers two particularly traumatic events during his 66 days in captivity.  The first days in prison were the initial test.

“I was sitting just on the floor, there were cold tiles in the basement, and it was very cold there. I was dressed lightly, in summer mode. They gave food twice a day,” he recalled.

“[My] eyes, legs and arms were bound. No movement, no normal sleep was possible. It was something between sleep and reality. Calling on the phone and talking was forbidden, everything was forbidden,” he added.

Opyra’s second traumatic experience was being made to do forced labor.

“A week before being freed, they brought us to work. Putting my health-related issues [as a result of being held captive] and the large amounts of work aside, the most dreadful thing was to dig and be shelled without any chance of stopping work,” he said.

“Besides the shells, a SU-25 [Ukrainian military plane] once came flying over and started shooting. I do not know if it was shooting at a target or just shooting. Nobody was wounded, but it was horrible.”

Oprya is suing both Ukraine and Russia, and hopes that the Strasbourg court will award 100,000 euros in compensation for the suffering that he and his family endured and the legal and medical expenses he incurred as a result.

Ironically, more cases have been submitted against Ukraine than against Russia in relation to the war in Ukraine’s east and the occupation of Crimea. Lebid explained that although she believes that Russia bears “key responsibility” for the suffering in Donbas, victims of human rights violations want compensation as well as justice – and they have higher chances of obtaining compensatory payments from Ukraine. 

Russia recognises the primacy of international law reluctantly if at all, including the decisions of the European Court of Human Rights.

The cases that Lebid handles are mostly about killings, torture, illegal detention, and forced labor. One of them concerns the murder of four priests from the Pentacostal church in Slavyansk, a city of 114,000 inhabitants in the Donetsk region, by Russian-backed rebels. 

The European Court of Human Rights accepted the case but a final decision has been postponed until the court rules on inter-state disputes between Ukraine and Russia. The court is currently considering inter-state disputes submitted by Ukraine against Russia for occupying Crimea and de facto controlling parts of the Donbas region and thus bearing responsibility for human rights violations there.

The rulings in these inter-state disputes will give the answer to the crucial question “whether Russia bears responsibility for the violations of rights in the east of Ukraine and whether Russia has jurisdiction over [certain parts of the] territory of Ukraine”, said Lebid.

The rulings will then lay the foundation for decisions in numerous individual cases, including the case of the four murdered priests, she added. 

However, the individual cases cannot be decided upon en masse, because at various stages of the conflict, the involvement of Russia was different, and the Strasbourg court must analyse each of them separately.

“For example, in Slavyansk, there is a question of whether Russia’s jurisdiction [over the city when it was held by separatists before being retaken by Ukrainian troops] will be proven or not. As for instance [in the case of] the Ilovaysk tragedy [when large numbers of retreating Ukrainian troops were killed in August 2014], everything is obvious – there was an open invasion by the regular Russian army,” Lebid argued.

Russia denies this.

Vitalia Lebid, lawyer at the Ukrainian Helsinki Human Rights Union. Photo: Volodymyr Petrov / Kyiv Post 

‘Evil must be punished’

Nina Branovytska, the mother of deceased Ukrainian soldier Ihor Branovytsky, meets journalists in her Soviet-era flat on the outskirts of Kyiv. Branovytska remains a strong and resolute woman despite the loss of her son Ihor, who was murdered on January 21, 2016 while being held in captivity by Russian-backed separatists.

During the second devastating battle for the Donetsk airport compound, which lasted for three months from September 2014 to January 2015, when Ukrainian troops were forced to retreat, Branovytsky was taken prisoner, tortured and eventually killed with a gunshot to the head by a separatist warlord nicknamed ‘Motorola’ – a Russian citizen whose real name was Arseny Pavlov.

Branovytska filed her case to the European Court of Human Rights against both Russia and Ukraine: “Against Russia, for murder by a Russian citizen, as it turned out later, and for failure to prevent it – against Ukraine, [questioning] whether it was necessary for the boys to stay there in the [destroyed] airport and whether there was any logic in defending it,” she explained.

She is clear about what her case can and cannot achieve: “The resolution of the case will bring me nothing, I will not get Ihor back,” she said.

“But there are other boys, they are alive. And [the case is being brought] in order to protect them, and to make our [Ukrainian] military command understand that they are not cannon fodder. They are children, men, they are our genetic pool, and they should be protected. And if they are volunteers protecting the country, it does not mean that they should be mowed down. We need them,” she continued.

Speaking about the other target of the case – Russia – Branovytska insisted that “somebody must be held responsible for the torture, for the humiliation, for the murders”. 

“The evil must be punished, there must be some sort of punishment. So that people know that it is not permissible to come to a foreign country to just kill, torture and feel that they are free of punishment,” she said.

Meanwhile various groups of relatives of the MH17 flight that was shot down over eastern Ukraine on July 17, 2014 want to bring either Ukraine or Russia to justice for downing the civilian plane. The strike by a Buk-type missile killed everyone on board – 298 people in total.

Australia and the Netherlands, where the majority of the passengers came from, have accused Russia of being responsible for downing the plane, but no formal national court decision has been made yet. 

A Dutch court is supposed to handle a case initiated by the Dutch prosecutor’s office, but before it rules, the European Court of Human Rights may issue its own verdict on the matter.

Four German citizens are suing Ukraine at the Strasbourg court for not closing its airspace during the active warfare in the country’s east, while 33 relatives of the deceased passengers from Australia, New Zealand and Malaysia are suing Russia and President Vladimir Putin for 10 million Australian dollars (about 6,270,000 euros) each.

Nina Branovytska, the mother of deceased Ukrainian soldier Ihor Branovytsky who defended the Donetsk airport. Photo: Konstantin Chernichkin / Kyiv Post

Families bear the burden

Ukraine is still trying to free all of its prisoners of war held by the so-called People’s Republics in the rebel-controlled Donetsk and Luhansk areas. Meanwhile their families wait for news, and hope.

Viktoriya Pantyushenko has not seen her husband, Ukrainian tank commander Bohdan Pantyushenko, since January 2015. Along with his tank crew, he was on a special mission to cover Ukrainian sappers who were blowing up a strategic bridge near Donetsk airport on January 18, 2015 – but the tank was hit and the crew taken prisoner.

Pantyuschenko looked hopeful when she came to a café in central Kyiv to talk about her case, as news of the possibility of a new prisoner exchange had been circulating in the media.

Her case at the European Court of Human Rights is against Russia. She decided not to sue Ukraine without her husband’s advice because he “possibly understands better who is guilty of his imprisonment”.

READ MORE: Ukraine’s Troubled Search for Missing Persons (DOCUMENTARY)

For herself, Pantyushenko said that she cannot believe that Russia was entirely guilty for her husband still being in captivity.

“I think that Ukraine is also responsible for failing until now to pull its military men out of imprisonment after they have been there all this time. If they [Ukrainian officials] could not do it by themselves, international experience, international diplomats had to be involved,” she argued.

As Ukraine’s human rights lawyers continue to work on thousands of complex cases like this, it is clear that these legal disputes will not be resolved any time soon.

As far as the victims and their families are concerned, all they can expect if they win is a legal ruling confirming the facts of their case and some compensation – but not enough to compensate for ruined lives and lost loved ones. But they can at least know that some kind of justice has been done.

Pantyushenko said she is well aware that Russia is reluctant to accept the rulings of the European Court of Human Rights, and that her husband is more likely to be freed under a negotiated prisoner exchange.

Nevertheless, the pending decision of the Strasbourg court is important to her. It is a way, she said, “to prove – and maybe not only to ourselves but also the world – that we are having a war with Russia, and not a civil conflict.”

“At this level, it is essential for me.”

READ MORE: How Ukraine and Pro-Russian Separatists Traded Unconvicted Prisoners (DOCUMENTARY)

/By Vyacheslav Hnatyuk, BIRN, Kyiv

The story was produced as part of a transitional justice project jointly with the Balkan Investigative Reporting Network (BIRN).

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