Ukraine v. Russia (re Eastern Ukraine) APPLICATION NO. 8019/16 Kyiv, 8 November 2019 MEMORIAL ON ADMISSIBILITY ON BEHALF OF THE GOVERNMENT OF UKRAINE CHAPTER 1: INTRODUCTION 1. The Russian Federation has consistently denied its involvement in the conflict in eastern Ukraine, and has sought to evade international legal responsibility by adopting a series of measures to disguise and “outsource” its military aggression in eastern Ukraine. The Kremlin’s denials of direct involvement were implausible from the outset, and were roundly rejected by the international community. All of the relevant international institutions rightly hold Moscow responsible for a pattern of conduct that has been designed to destabilise Ukraine by sponsoring separatist entities in the use of armed force against the legitimate Government and members of the civilian population. Almost from the outset, the United Nations, the Council of Europe, the European Union, and the G7 all re-affirmed Ukraine’s sovereignty and territorial integrity within its internationally recognised borders, and condemned the Russian Federation’s continuing proxy war in eastern Ukraine. As the conflict has continued, the evidence of Russia’s direct and indirect involvement in the violent rebellion in Donbass has become more and more apparent. Despite Russia’s crude attempts to conceal its involvement, the proof of Russian State responsibility has steadily mounted. In the face of the obvious truth, Russia’s policy of implausible deniability has fallen apart completely. 2. Ukraine submits that the human rights violations committed by Russian forces and their proxies, as particularised in this application, fall directly within Russia’s extra-territorial jurisdiction for the purposes of article 1 of the Convention. This is the result of the straightforward application of the Court’s well-settled principles governing extra-territorial jurisdiction and accountability for human rights violations committed by a Contracting State outside its national territory. Ukraine invokes both (a) the principle of effective control of territory (directly and through subordinate local forces); and (b) State agent authority and control over the victims of the violations alleged, as the legal basis for establishing Russian “jurisdiction” within the meaning of article 1 of the Convention. 3. The multiple violations alleged in this case plainly constitute a pattern or system: a series of violations of the same or similar character, connected by motivation, place and time. They reflect a joint enterprise amounting to an administrative practice for the purposes of Convention liability in inter-State proceedings. The purpose of the application is to vindicate the human rights of the victims; to bring these 1 administrative practices to an end; and to prevent a recurrence. 4. The international community has rightly categorised the conflict in eastern Ukraine as an international armed conflict to which the Russian Federation is a State party. In her regular reporting to the UN Security Council, the ICC Prosecutor has formally determined that “direct military engagement between the respective armed forces of the Russian Federation and Ukraine indicated the existence of an international armed conflict in eastern Ukraine from 14 July 2014”.1 On 7 September 2014, echoing the Prosecutor’s analysis, Amnesty International categorised the conflict in eastern Ukraine as an international armed conflict involving both Russian regular and proxy forces2 5. The Council of Europe has also recognised the reality of Russian State responsibility for instigating the conflict. On 28 January 2015, the Parliamentary Assembly (PACE) adopted Resolution 2034 (2015) condemning Russia’s role in the conflict in eastern Ukraine, expressly recognising that Russia was responsible for instigating the conflict in the first place, as well for escalating it ever since. The resolution condemned Russia’s actions as a grave violation of international law, in general, and of the Statute of the Council of Europe, in particular.3 The relevant passage reads: “The Assembly is extremely concerned about the developments in eastern Ukraine and condemns Russia’s role in instigating and escalating these developments, including with arms supplies to insurgent forces and covert military action by Russian troops inside eastern Ukraine, which are a gross violation of international law, including the Statute of the Council of Europe as well as of the Minsk Protocol to which Russia is a party. In addition, the Assembly expresses its dismay about the participation of large numbers of Russian “volunteers” in the conflict in eastern Ukraine without any apparent action of the Russian authorities to stop this participation, despite it being in violation of the Criminal Code of the Russian Federation itself. It takes note of credible reports of burials of soldiers on Russian territory. The Assembly condemns the violation of the territorial integrity and borders of a Council of Europe member State by the Russian Federation.” 6. On 12 October 2016, PACE adopted Resolution 2133 (2016) which has a direct bearing on the issues before the Court. The resolution was concerned with the absence of effective legal remedies for human rights violations occurring on those parts of the territory of Ukraine that were no longer under effective Government control. The resolution reflects a clear conclusion of the Parliamentary branch of the Council of Europe that Russia bears legal responsibility for the widespread campaign of human rights violations in those parts of Donbass, and unequivocally concluded that the Russian Federation was in effective control of the territory occupied by the DPR and LPR. 1 www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf 2https://web.archive.org/web/20150912102834/https://www.amnesty.org/en/press- releases/2014/09/ukraine-mounting-evidence-war-crimes-and-russian-involvement/ 3 http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=21538&lang=en 2 7. In reaching this conclusion, as one would expect, PACE faithfully applied the legal test for effective control laid down in this Court’s caselaw: “In the “DPR” and the “LPR”, effective control is based on the crucial and well-documented role of Russian military personnel in taking over and maintaining power in these regions, against the determined resistance of the legitimate Ukrainian authorities, and on the complete dependence of these regions on Russia in logistical, financial and administrative matters... Under international law, the Russian Federation, which exercises de facto control over these territories, is responsible for the protection of their populations. Russia must therefore guarantee the human rights of all inhabitants.” 4 8. Based on consistent international reporting, the resolution recorded that in the areas of the Ukrainian Donbass that were under Russia’s effective control, there had been a widespread pattern of grave Convention violations: “In the conflict zone in the Donbas region, the civilian population and a large number of combatants were subjected to violations of their rights life and physical integrity and to the free enjoyment of property, as a result of war crimes and crimes against humanity including the indiscriminate or even intentional shelling of civilian areas.”5 9. The finding that war crimes and crimes against humanity had been committed by pro-Russian forces in Donbass necessary amounts to a conclusion that these violations are legally attributable to the Russian Federation. In light of its findings that Ukraine had lost control of the territory, and that the “courts” of the de facto “administrations” in the DPR and LPR are illegal and illegitimate, the PACE resolution necessarily implies that there are no effective legal remedies potentially available in the national legal system. The European Court of Human Rights is thus the only avenue of effective legal redress available. 4 Ibid. 5 Ibid. 3 CHAPTER 2: THE COURT’S QUESTIONS ON ADMISSIBILITY QuestioN 1: Does the Court have “jurisdiction” to rule on the present case? Ukraine’s answer 10. Yes. The violations alleged in the present case all fall within the “jurisdiction” of the Russian Federation for the purposes of article 1 of the Convention. The Convention applies ratione materiae, ratione temporis and ratione personae to the violation alleged. Article 35 sets out the admissibility criteria to be applied by the Court in an inter-State case. The additional admissibility criteria applicable in an individual application (including the requirement to demonstrate that an application is not “manifestly ill-founded” or “an abuse of the right of individual petition”) have no application at the admissibility stage of an inter-State application. The Court’s evidential standard 11. Russia argues that the quality of the evidence adduced by the Ukrainian Government is inconclusive, and that this provides support for the argument that the application is inadmissible. The submission is inconsistent with the overwhelming body of evidence set out in Chapter 3 and Appendix 1 below and, in any event, does not amount to an admissibility objection in the context of an inter-State application. It is now well-settled that, in inter-State proceedings, the Court is not required to conduct a preliminary assessment of the evidential merits, of the kind that is routinely carried out when considering the admissibility of an individual application. 12. An inter-State application that has been brought within the six-month time limit is only to be declared inadmissible if it is incompatible with the provisions of the Convention, or if the allegations of the applicant Government are “wholly unsubstantiated” or are “lacking the requirements of a genuine allegation in the sense of Article 33 of the Convention”. That threshold is plainly surmounted. Beyond that, it is not for the Court to assess the weight of the evidence at the admissibility stage. As the Court ruled in Georgia v. Russia (I) 13255/07 (30 June 2009), a preliminary consideration of the merits is simply not part of the Court’s function at the admissibility stage in an inter-State case: “43.