EIGHTH SESSION OF THE FORUM ON MINORITY ISSUES "MINORITIES IN THE CRIMINAL JUSTICE SYSTEM” ALTERNATIVE REPORT ON THE CRIMEAN TATARS IN THE CRIMINAL JUSTICE SYSTEM OF THE RUSSIAN FEDERATION IN THE CRIMEAN PENINSULA BETWEEN JANUARY 2014 AND SEPTEMBER 2015 November 2015 THE CENTRE FOR CIVIL LIBERTIES Office 25, 9G Basseyna Street, Kyiv 01004, Ukraine www.ccl.org.ua ▪ [email protected] CONTENTS SUMMARY ........................................................................................................................................ 3 I. INTRODUCTION ........................................................................................................................... 3 II. BACKGROUND ............................................................................................................................ 4 III. CRIMEAN TATARS AND THE CRIMINAL JUSTICE PROCESS .......................................... 6 A. MINORITY VICTIMS AND WITNESSES ...................................................................................... 6 B. REPRESENTATION DURING INVESTIGATION AND PRE-TRIAL DETENTION .............................. 7 C. RIGHTS IN RELATION TO JUDICIAL PROCEDURES AND HEARINGS ........................................ 10 IV. CONCLUSIONS ........................................................................................................................ 11 V. RECOMMENDATIONS ............................................................................................................. 11 2 SUMMARY A. This alternative reports have been prepared to address the issues of racial discrimination against the Crimean Tatars People (the “Crimean Tatars”) in the criminal justice system in the period between January 2014 and September 2015. B. We note that the Special Rapporteur on minority issue, Rita Izsák, when visited Ukraine in April 2014, did not receive the required assurances to enable her to travel to the occupied Autonomous Republic of Crimean1. Consequently, the situation with the observance of the human rights of the Crimean Tatars was reported on the basis of the testimonies of the witnesses who had left Crimea due to the security and other concerns. In order to facilitate the monitoring of the human rights in Crimea we will outline in this report the facts related to the application of the Russia’s municipal criminal law to the members of the Crimean Tatars ethnic minority. C. We believe that the Forum on minority issues provides an excellent opportunity to articulate the main concerns and to address them before the international community. I. INTRODUCTION 1. During the years of Soviet Union the Crimean Tatars suffered from various crimes against international law such as genocide, ethnic cleansing, mass deportation and racial discrimination2. The number of people died from these evils amounted to tens of thousands3. From the late 80s Crimean Tatars have started to return in numbers to their ethnic lands in Crimea where they have settled with their families. 2. After the independence of Ukraine and on the basis of its municipal law the ethnic minorities were granted the nationality of Ukraine4. A 2001 census showed that Crimean Tatars constituted 12.03 per cent (243`433 people) of Crimea’s population5. The majority of them were nationals of Ukraine6. 3. From the early days of public rallies of 2013 which later in February 2014 culminated in the ousting of the pro-Russia authorities from Ukraine (events named the “Revolution of Dignity”) 1 See Para 44 UN Human Rights Council, Report of the Special Rapporteur on minority issues, Addendum: Mission to Ukraine, 27 January 2015, A/HRC/28/64/Add.1, available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/28/64/Add.1 (accessed 15 November 2015). 2 J. Otto Pohl, “The Deportation and Fate of the Crimean Tatars” presented at the 5th Annual World Convention of the Association for the Study of Nationalities: "Identity and the State: Nationalism and Sovereignty in a Changing World", International Committee for Crimea, available at http://www.iccrimea.org/scholarly/jopohl.html (accessed on 14 April 2015). 3 Ibid. 4 Law of Ukraine on Nationality of 8 October 1991 No 1636-XII, article 2(1) (where a person of other nationality was allowed to reject a Ukrainian one), (Bulletin of Verkhovna Rada (BVR), 1991, No 50, p. 701) 5 A comparison between 1989 and 2001 censuses can be found in Ukrainian at http://2001.ukrcensus.gov.ua/results/general/nationality (accessed on 14 April 2015). 6 UNPO noted that 98 per cent of Crimean Tatars had obtained the Ukraine’s citizenship in this regard see “Crimean Tatars”, Unrepresented Nations and Peoples Organization, 25 March 2008, available at http://unpo.org/members/7871 (accessed on 18 April 2015). 3 many Crimean Tatars as well as their political leaders actively supported the political demands of the activists. Russia responded to these events by illegal annexation of the Crimean peninsula. 4. Following the annexation the international community on numerous occasions7 has called Russia to restore the territorial integrity of Ukraine and to refrain from the acts of aggression. Russia has done nothing to restore the international peace. The international community further declared that a so-called “referendum”, held in Crimea on 16 March 2014 under duress of the Russia’s military personal and in breach of the Ukraine’s municipal law, was void ad initio8. 5. It is universally recognized principle that neither conquest nor other act of aggression creates a title to a territory seized, such aggressive acts lead only to the illegal (de-facto) possession9. The international law provides that an occupying power shall respect the laws in force in an occupied territory10. Both Ukraine and Russia are parties to the various human rights instruments such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of all Forms of Racial Discrimination (“CERD”). Neither has lodged any reservations with regard to their limited application to the present circumstances. 6. The jurisprudence of the International Court of Justice 11 suggests that an occupying power is under international obligations to ensure the respect of international human rights law in an occupied territory. The Committee on the Elimination of Racial Discrimination has drawn attention of the Member States to the conception of CERD`s universal application including in the circumstances of occupation12. 7. In this report, we will outline the cases, in our opinion, suggesting that Russia is indeed engaged in Crimea in practices of arbitrary and selective application of its municipal criminal law to the Crimean Tatars and then present our recommendations in this regard. II. BACKGROUND 8. Crimean Tatars are a people within the meaning of international law. They have common language, culture, religion and established political community in a form of a national congress – The 7 For instance, “PACE Strongly Supports Ukraine’s Territorial Integrity and National Sovereignty”, Standing Committee, 7 March 2014, available at http://www.assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=4908&lang=2&cat=17 (accessed on 14 April 2015). 8 UN General Assembly, Territorial Integrity of Ukraine: resolution / adopted by the General Assembly, 1 April 2014, A/RES/68/262, available at http://www.refworld.org/docid/534502a14.html (accessed on 13 April 2015). 9 Jennings, R. Y., “The Acquisition of Territory in International Law”, Manchester, Manchester University Press, 1963, pp. 52-65; Malcolm N. Shaw “International Law”, Cambridge University Press, pp. 500-502; 10 Article 43 of the Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention (II) of 1899 and Hague Convention (IV) of 1907 printed in Yoram Dinstein “Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding”, Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series, Fall 2004, Number 1, available at http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper1 (accessed on 14 April 2015). 11 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 197. 12 Micheal Banton, “International Action against Racial Discrimination”, Oxford University Press, 1996, pp. 110-114. 4 Qurultay of the Crimean Tatar People (the “Qurultay”) and a highest executive body - The Mejlis of the Crimean Tatar People (the “Mejlis”). 9. In the period in question Russia operated in Crimea through its state and de-facto (separatist) authorities. Russia also directly or via the separatist authorities employed various paramilitary units to conduct its will, one of the most notorious of which is a paramilitary organization “Crimean Self-Defence” (this name is rather a generalization of several paramilitary formations active in Crimea). Since this paramilitary organization has actively participated in various acts of valance it seems relevant to outline its history in more detail. 10. It emerged in February 2014 when its members together with the Russia’s military personnel stormed and occupied the Ukrainian military bases, intimidated and assaulted the pro-Ukraine activists. In June 2014, the separatist authorities of Crimea passed a local by-law13 granting Crimean Self-Defence the status of a citizen patrol (militia) directly subordinated to Sergey Aksenov,