The European human rights protection system: challenges as a result of the Russian invasion of Ukraine

Abstract

The article analyzes the challenges faced by the European human rights protection system since the beginning of a new full-scale phase of armed aggression on the territory of Ukraine. Attention is focused on the gender-based nature of the argumentation used by the Russian military-political leadership to justify the invasion, in particular, its similarity to the typical explanation of the offender who commits domestic violence. Two large groups of challenges caused by the impact of the armed conflict since 24 February 2022 are singled out: the first includes challenges related to the consequences of the cessation of membership of the Russian Federation in the Council of Europe (CoE), i.e. the Russian Federation no longer has the right to be represented in the CoE’s organs or bodies, it is bound to fulfil its full financial obligations, to implement the ECtHR judgements, etc.; the second relates to the likely change in the nature and scope of application to the European Court of Human Rights. Based on statistical data and taking into account that the Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022, as well as in view of the planned campaign of submissions of thousands of applications against Ukraine in order to discredit it made by lawyers from Russia and the occupied Ukrainian territories, it is predicted that the share of applications against Russia in the ECtHR would be decreasing while the share of applications against Ukraine would be increasing. Depending on the subject composition of the applicants and respondent states, the author singles out four types of potential applications to the ECtHR made by: everyone within the Ukrainian jurisdiction against Ukraine; everyone within the Ukrainian jurisdiction against the Russian Federation (until 16 September 2022); citizens of the Russian Federation residing in Europe against the CoE member state(s); citizens of Ukraine residing in Europe against the CoE member state(s).
 It is assumed that one of the biggest challenges for both the ECtHR and the domestic legal system would be applications to the ECtHR against Ukraine submitted not only by victims of armed conflict (or their relatives), but also by convicted persons, in particular, for the commission of war crimes, crimes against humanity and the crime of genocide, and by persons who have suffered restrictions of their rights due to assistance to the aggressor state or as a result of the legal regime of martial law. In this context, for domestic legal system is crucial to comply with procedural obligations under Art. 2 and Art. 3 of the Convention regarding the effective investigation of deaths, allegations of torture and inhuman treatment, the right to a fair trial under Art. 6, the right to liberty and security under Art. 5, in particular when it comes to pre-trial detention, no punishment without law under Art. 7. In non-criminal cases the justification of interference in non-absolute rights guaranteed by the Convention should be done in accordance with the three-step test, and reflected in he well-reasoned court decisions.