Ukraine vs Russia. The Beginning of Legal Wars

On October 21, 2015, Ukraine sent the claim to the World Trade Organization against the Russian Federation, which put forward the issue for the imposition of Russian limitations on the supply of rail cars, switch equipment for railways and other products in the industry, because of which revenues of Ukrainian companies have fallen to 96%. At the same time official Kiev warned that other claims against Russia are prepared.

This event is not the first in the legal war of Ukraine against Russia, which was announced in 2014 but in the second half of 2015 took the unwrapped and massive character. However, if Ukraine has a strong position in the field of trade relations, litigation under International Court of Justice, the main judicial organ of the United Nations, looks less attractive. And this is not a fault or defect of Ukrainian lawyers, the problem is that Russia does not recognize the automatic jurisdiction of the International Court of EU, except one case – when it comes to disputes concerning to the International Covenants on Human Rights and the Convention on the Elimination of All Forms of Racial Discrimination. Ukraine, if it is preparing a lawsuit against Russia at the International Court of Justice, should find an acceptable justification, the fact that the Russian annexation of the Crimea or “hybrid” intervention at the east of Ukraine in Donetsk and Lugansk regions was the result of racial discrimination. The fact that the way to protect its rights in the International Court of Justice was chosen by Georgia against Russia in August 2008, and Georgia lost, slows Ukrainian lawyers down.

More promising are the attempts of trials with Russia in the European Court of Human Rights (ECHR). European Convention on Human Rights (Rome, 1950), on the basis of which the ECHR acts, provides the possibility of filing complaints not only by individuals against States, but also States against States. Complaints of Ukraine against Russia concern allegations of violations of a number of human rights, committed in the Crimea and at the East of Ukraine (the right for life, prohibition of torture, the right for a fair trial, religious freedom, freedom of expression, freedom of assembly, the right for safety and security of a person, prohibition of discrimination, the right for respect of private life, the right for free elections, the right for protection of property). Such violations of human rights are the result of Russian actions, which annexed the Crimea, or the result of using forces by armed groups at the East of Ukraine controlled by Russia, Russian’s deliveries of weapons to illegal military formations, as well as the result of a hidden use of Russian regular military units, military experts and technology at the East of Ukraine. Separately, it is worth noting that one of the complaints concern Russia’s kidnapping of three groups of children of Ukrainian citizens and holding them, in fact, as hostages. However, Russia does not consider its actions as kidnapping and holding of hostages, but Russian officials say that children are not abducted, but “just taken out to Russia for medical treatment or rehabilitation.”

In addition to the three inter-state complaints of Ukraine against Russia, there are more than 1500 individual complaints of citizens of Ukraine in the ECHR, concerning the annexation of the Crimea or crimes at the East of Ukraine. Many of these complaints relate to the impossibility of implementing the ownership on occupied or controlled territories by Russia. At the same time the, ECHR has sufficient practice in matters of so-called state of arbitrariness (case ECHR №20680/92 November 15, 1996 “Tsomtsos and others against Greece”, №19385/92 November 15, 1996 “Katikaridis and others against Greece”), refusal in access to property (case ECHR №15318/89 December 18, 1996 “Loizidou against Turkey”). They are very interesting due to the fact that the ECHR considers that the factual obstacles can be seen as a violation of the European Convention in the same way as the limitations based on the law, which is very similar to the situation and the actions of Russia in the Crimea and East of Ukraine.

Some Ukrainian oligarchs do not lag behind the state of Ukraine in litigation. Ukrainian oligarch Igor Kolomoisky sued against Russia in the International Court of The Hague.

While all trials are in the early stages of the proceedings, there is no high-profile decisions that may create a false impression of the futility of Ukraine as a state as well as Ukrainian citizens and legal persons to protect their rights and interests in a civilized way – in the court, that disregard of the international law can be unpunished. It is a false idea only because 11 years ago no one betted on the former UKOS shareholders in their dispute against Russia in the International Court of Arbitration (The Hague, Netherlands). But today, the former UKOS shareholders have the decision to charge from Russia 50 billion US dollars, and the lawyers of the plaintiffs are active in the US, UK, Germany, France, Belgium and other countries to implement within the data of the decision of the International Court of Arbitration, seizure, etc. Maybe this is why an oligarch Igor Kolomoisky, who has a qualified team of lawyers, experts in international law, with the experience of protection of interests of Ukrainian financial and industrial group PRIVATE in international courts, particularly in the London arbitration, chose the International Court of Arbitration in The Hague to review his claims to Russia. This oligarch and his financial and industrial group lost significant assets in the Crimea and want to get an adequate satisfaction for it.

It should be noted that, in spite of the dashing and sarcastic rhetoric of Russian officials, their mockery of attempts by the state of Ukraine, some Ukrainian citizens and legal persons to protect their rights and interests in the international courts concerning the illegal actions of Russia, Russian top leadership are frankly frightened by the prospects of such cases and take attempts not to execute the decisions of international courts in advance. So, on June 14, 2015, the Constitutional Court of the Russian Federation announced the decision which stated that the European Convention on Human Rights and built on its basis practice of the European Court of Human Rights do not cancel the principle of the priority of the Constitution of the Russian Federation. It means that Russia has a right to ignore any decisions of the ECHR which the government does not like, and which as controlled by the Kremlin Russian courts find to contradict to the Russian Constitution.

Author: Kydalov Igor