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Ukraine Shall Pay for the Violation of Human Rights in the Territories of ATO and Crimea Because of the Inactivity of Civil Servants

The annexation of Crimea and military conflict in Donbas might result in citizens filing a great number of complaints to the European Court of Human Rights, as despite the invasive actions of the Russian Federation these territories remain under the jurisdiction of Ukraine, internationally held accountable for the violation of human rights provided for by the Convention. Though this document, namely Article 15 thereof enables our country to escape responsibility having taken the derogation from obligations during the emergency situation. However our civil servants are not in a hurry to execute the right preventing Ukraine from payment of great amounts of reimbursement in the event of losing actions in the ECHR to applicants from the occupied territories in Crimea and Donbas. Bohdan Bondarenko, the lawyer of public office the UHHRU in Zhytomyr, has personally made sure of that.

He sent information inquiries to three authorities, namely the Ministry of Justice responsible for the legal relations of Ukraine, the Ministry of Foreign Affairs representing our country internationally, and the of the Prosecutor General’s Office of Ukraine. “The choice of the latter one was conditioned by the fact that the amounts of reimbursement for the actions of terrorists in Donbas and inactivity of Avakov, the Minister of Internal Affairs, in the field of timely rotation of police divisions, as well as inactivity of law enforcement officers in March-April, 2014 during the takeover of public authorities by armed gangs might “one-up” the “gas case” or the dispute over the foreign exchange reserves of the NBU. And someone does have to be held liable for the damage caused to the country according to Article 367 “Neglect of Duty” of the Criminal Code of Ukraine”, Bohdan Bondarenko, the UHHRU lawyer is sure of that.

In his inquiries he noted that Article 15 of the Convention provided for the derogation from obligations during a war or other public danger threatening the life of the nation. Any High Contracting Party may take steps derogating from one’s obligations under the Convention solely to the extent required by the acuteness of situation, provided that such steps are not in contradiction with its other obligations in accordance with international law. The above-stated situation cannot serve as the ground for the derogation from Article 2 (Right to Life) safe for the events of death resulting from lawful military actions, and from Articles 3 (Prohibition of Torture), 4 (Prohibition of Slavery and Forced Labour (cl. 1)) and 7 (No Punishment without Law).

Bohdan Bondarenko also reminded civil servants that in order to execute the right of derogation from one’s obligations any High Contracting Party is to inform in full the Secretary General of the Council of Europe on the steps it took and reasons for taking them. It is also to inform the Secretary General of the Council of Europe on the time when such actions ceased to be taken and the provision of the Convention started to be applied in full again.

The responses received from these authorities bear evidence of the fact that civil servants and law enforcement officers are not interested in protecting Ukraine against multibillion losses of the Budget of Ukraine (regarding payments of satisfaction). As the response obtained from the Prosecutor General’s Office referred to the fact that the Prosecutor General’s Office of Ukraine did not dispose of the information regarding the issues laid out in the inquiry of Bohdan Bondarenko, the lawyer of UHHRU. The Ministry of Foreign Affairs also withdrew from this case having forwarded Bohdan Bondarenko’s inquiry to another authority.

The more or less substantive response arrived from the Ministry of Justice under the hand of Nataliia Sevostianova, the Authorized Government Official for ECHR Affairs, who noted that considering the conduct of the Anti-Terrorist Operation in Regions of Donetsk and Lugansk the Ministry of Justice addressed the issue of filing the application on the derogation from obligations to the European Council based on Article 15 of the Convention for Human Rights and Fundamental Freedoms. “Thus, in pursuance of the Edict of the President of Ukraine No. 875/2014 dated November 14, 2014 “On Decision of the National Security and Defence Council of Ukraine dated November 04, 2014 “On Immediate Actions in respect of Stabilization of Social and Economic Situation in Regions of Donetsk and Lugansk”, the Ministry of Justice of Ukraine forwarded relevant proposals and documents with regard to filing an application on behalf of Ukraine to the Secretary General of the Council of Europe in accordance with Article 15 of the Convention on Ukraine taking actions in certain territories in the area of conduct of the Anti-Terrorist Operation in Regions of Donetsk and Lugansk due to the existent public danger threatening the life of the nation derogating from the obligations of Ukraine under this Convention to the Ministry of Foreign Affairs of Ukraine”, it was said in the response of Nataliia Sevostianova, the Authorized Government Official for ECHR Affairs.

Thus, as we can see it is the Ministry of the Foreign Affairs that is the last link in the system of the public authorities responsible for filing an application on the derogation from obligations based on Article 15 of the Convention to the European Council. However the formal reply of one’s civil servants to Bohdan Bondarenko’s inquiry bears record to the fact that no one there has even started doing anything in this regard. Though, even today a number of cases relating with the violation of the Convention arising from events taking place in the temporarily occupied territory of the AR of Crimea and certain territories of Regions of Donetsk and Lugansk, though not claiming reimbursement from Ukraine, are pending consideration of the Authorized Government Official for ECHR Affairs.

However, it is possible that eventually there will be a lot more of such cases versus Ukraine, as no one is in a hurry to return Crimea to Ukrainians and the crisis in Donbas only exacerbates. And among those cases the ones demanding satisfactions, which in the event of losing an action with the ECHR, shall be subject to payment out of the National Budget of Ukraine, i.e. out of the pocket of a fellow Ukrainian, shall appear. Governmental authorities shall be materially guilty of that due to their failure to take relevant actions timely.

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