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21 February

“The ECHR is one of the best international institutions to help Ukraine establish Russia’s aggression”

Deputy Justice Minister and the Ombudsman to the European Court of Human Rights on official evidence of the presence of Russian troops in Ukraine's territory

Interviewed by Yuriy Lapayev

What official evidence about the Russian Federation’s involvement in the conflict has been submitted to the European Court of Human Rights so far?

— Before we start, it’s important to understand the purpose of this process. The first question is what we are trying to achieve and why this case is being submitted to the ECHR. This Court has developed an approach specifically for cases when one member of the Council of Europe has taken over the territory of another member country. Our case is not the first such case, so the ECHR has established practice in this area. In accordance with international law, every country is responsible for all the territory over which it has jurisdiction.

This is a general rule, but there is one exception to it. It goes like this: if a country loses part of its territory, then it is no longer responsible for negative duties towards that territory, that is, the duty not to violate the European Convention on Human Rights, or for the protection of human rights. If a country has expanded its territory by adding parts of another, for the ECHR it’s irrelevant how this happened, whether this was done legally or illegally, but it must ensure the application of the European Convention on Human Rights across that territory.

And so, I believe that the ECHR is the one of the best international institutions that can help Ukraine establish that there really has been Russian aggression. The Court itself won’t do this, but it will confirm that some country has overall effective control over a specific territory. This is a special term that was devised by the ECHR itself for these kinds of situations. It will establish that the Russian Federation has effective control over a part of the territory of Ukraine, which essentially amounts to occupation.

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For us, this is very important because this will be a fact established by a body with international jurisdiction and not by mere political declarations. For instance, this same fact was established in regard to Transnistria and Moldova is now preparing a demand that the Russian Federation regarding its illegal occupation of part of Moldova’s territory based specifically on a ruling by the ECHR.

The Court itself uses a number of criteria that establish whether or not there is control. The first and most important one is the presence of foreign military or boots on the ground. In this manner, the ECHR confirmed that Turkey controls Northern Cyprus and Russia controls Transnistria.

But in a recent case called Chiragov and Others vs Armenia, the Court ruled that even in a situation where there is no confirmation of boots on the ground, the territory can be deemed to be effectively under outside control if it can be proved that there are tight political or economic ties between it and a third state. The ECHR was unable to state with complete confidence that there are Armenian soldiers in Nagorno-Karabakh, but it was able to establish that this region is tied to Armenia through such economic, political and other links that effectively they are one state.

How useful might this be in a case when a hybrid war is being waged that uses soldiers with no identifying markings on their uniforms?

— This is precisely what distinguishes the case of Donbas from similar suits regarding Crimea, where the Kremlin has completely acknowledged its control. In the case of DNR and LNR, however, it keeps insisting “We aren’t there.” That makes the task harder—and more interesting. We have to prove the presence of military and if we don’t succeed, then we have to provide evidence of close links.

We are providing evidence of Russian boots on the ground through testimony from those who have seen Russian soldiers, talked with them or captured them. Where possible, we provide video materials. We actually tracked down the authors of all the videos on YouTube and questioned them, meaning we aren’t just offering clips off the internet, but also a real person who provided notarized testimony explaining the video. Everything has been presented as fully as possible to prevent any future challenges to its factualness.

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In addition to that, we have provided a military assessment of events in Ilovaisk, the fact that the Russian army was used, which units they were and when they entered the area. There is also military testimony from those who were serving at the border and were attacked from Russian territory. We have information from the military prosecutor about both the general nature of events that took place and specific testimony that it collected during its own investigations.

Another source were the border guards. They have provided very detailed documentation about artillery attacks, hour by hour, the direction the shooting came from and where it landed. In fact, it was thanks to this information that I learned that tactical ballistic missiles, likely the Tochka, were launched against Luhansk Airport. Their information also shows that there was not just the odd overflight but actual attacks by Russian military helicopters against border stations.

How much of the evidence you have collected came from non-government organizations?

— Some of the data we were given came from InformNapalm, an international volunteer investigative community. This is very serious information about specific categories of weapons, when and where they were found, together with photographs and affidavits. We also have detailed information from Bellingcat that we didn’t simply download from the internet but talked to Eliot Higgins himself. He also testified under oath in the UK regarding his investigations and the methodology used in his research.

What about material evidence?

— The military prosecutor has provided information about captured weapons, both a general list and more detailed descriptions of individual items. If necessary, we’re prepared to bring the weapons to the Court. We have examples of those weapons that were not made in Ukraine and were never sold here, with affidavits from the military prosecutor about the fact that they were not in Ukraine’s arsenal.

The most interesting aspect is the captured soldiers. We have data about them from the SBU, such as the paratroopers who “got lost” and their interrogations. We also have testimony from those people who actually captured them. These witnesses made the first videos that we later looked for on YouTube. I think that all the more-or-less known cases of captured Russian soldiers have been disclosed to us.

The same is true of the capture or destruction of military equipment together with any available documentation. In addition, we made a selection of all criminal cases involving Russian citizens who were captured in combat.

I should add that there’s also testimony from Ukrainian collaborators who have provided information about what instructors from the RF Armed Forces taught them. We have two witnesses from the other side. One of them gave himself in, the other was taken in by the SBU. According to what they’ve stated, the commanders at the battalion or separate company level, and all the HQs are staffed by Russians.

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What’s the strategy with regard to the second criterion, the evidence of political or economic ties?

— Here we’re talking mainly about the supply of arms and equipment. Beyond that, the Russian servicemen who are either commanding officers or instructors, or act as “player-coaches”. In this aspect it’s going to be important to show clear links between this entire structure, which exists both in the pseudo-republics and in the RF, to show that even if there is no massive military presence, this is nevertheless a part of the Russian army. They have the same titles, uniforms and system. And if there is a first and second “DPR/LPR” army corps, there should be something above them. These aren’t the “Donetsk” and “Luhansk” corps because, logically, they’d then belong to countries of that name.

Separate from this is evidence of economic and political ties. Here we have taken information regarding such things as the supply of Russian rubles. We also asked managers how exactly it’s organized. From what I understand, it’s a complicated structure because one part is held by the FSB, another is managed by the GRU, some bits are subordinated to the RF Presidential Administration, and others are under the Russian Government. There’s a Duma committee with a hard-to-understand name that in reality is the shadow government. It discusses completely specific and concrete issues regarding the administration of ORDiLO.

The next point is the provision of energy. Fortunately, this kind of information is open and we have official notices from Naftogaz Ukrainy which was billed (by Gazprom – Ed.) for the delivery of natural gas and oil to the occupied territories. All the relevant statements of Russian politicians are also being collected in a special file and all their moves are being noted.

BIO

Ivan Lishchyna, born December 29, 1977, in Kharkiv, graduated in 2000 from the Faculty of Law at the Yaroslav Mudriy National Academy of Law with honors, specializing in jurisprudence. He worked as a lawyer for the Kharkiv Human Rights Group in 2000-2001, legal secretary at the ECHR over 2002-2008, legal counsel for a series of law firms, including international ones, over 2008-2016. Mr. Lishchyna graduated with a Masters in Law from London University in 2016. That same year, he was appointed Government Ombudsman for the European Court of Human Rights and has been Deputy Justice Minister of Ukraine since 2017.

Translated by Lidia Wolanskyj  

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