Chapter 9 The Legal Systems of the Donetsk/Lugansk People’s Republics

International and European Considerations

In: Unrecognized Entities
Author: Roman Petrov
Full Access

1 Introduction*

This chapter pursues several objectives. The first objective is to analyze and to compare the foundations of the constitutional and legal orders of the non-recognized entities in Ukraine, namely the so-called “Donetsk/Lugansk People’s Republics”, and to clarify their status under international and European law. The second objective is to clarify whether the legal systems of these entities can ensure protection of the human rights and fundamental freedoms of their residents in line with standards of international public law and European law. The case of Crimea is omitted as it does not possess its own constitutional and legal system but was engulfed by the Russian constitutional system after annexation in March 2014.

The first part of the chapter deals with the historical background to the appearance and legal status of the Donetsk/Lugansk People’s Republics within international and European law. The second part provides a comparative analysis of their constitutional foundations. The third part focuses on the compatibility of their legal systems with the foundations of international law and analyses relevant case law of the European Court of Human Rights (ECtHR) on access by residents of the Donetsk/Lugansk People’s Republics to human rights protection as provided by the European Convention on Human Rights (echr). This objective implies analysis of a considerable scope of empirical evidence. However, it must be underlined that any scholar will experience severe limitations and problems in collecting relevant data from the territories of non-recognized entities that exist in a permanent environment of uncertainty, violence and frozen conflicts. Therefore, the author has limited the argumentation to references to official documents and open internet sources.

2 Historical Background and Current Status Quo of the Legal Systems of the Donetsk and Lugansk People’s Republics

The emergence of the Donetsk People’s Republic (dpr) and the Lugansk People’s Republic (lpr) took place shortly after the annexation of Crimea by the Russian Federation in March 2014. These events were caused by the same chain of geopolitical challenges triggered by the “Maidan Revolution” (“Revolution of Dignity”) in Ukraine. The annexation of Crimea became possible due to the active support of so-called “green men” who, as was later admitted by Russian President Vladimir Putin, belonged to the Russian army.1 However, one important difference exists between the occupation of Crimea and the seizure of power by separatists in Donetsk and Lugansk. In spite of adoption of a Declaration of Independence,2 the so-called ‘Russian Spring’ in Crimea in March 2014 was not aimed at gaining full sovereignty of the peninsula as a subject of international law but at rapid accession of the Autonomous Republic of Crimea to the Russian Federation.3 In contrast, the events in Donetsk and Lugansk were deliberately aimed at establishing two new state-like entities with their own legal systems.

The appearance of the dpr/lpr is a consequence of tragic events for Ukraine caused by the refusal of the 4th President of Ukraine, Viktor Yanukovich, to sign the EU-Ukraine Association Agreement at the Eastern Partnership Summit in Vilnius on 27–28 November 2013. Following mass protests by Ukrainians, Viktor Yanukovich unexpectedly fled Ukraine on 22 February 2014 and ended up in Russia. Soon after these events the Autonomous Republic of Crimea was annexed by the Russian regular army and incorporated into the Russian Federation in March 2014 following an illegitimate referendum on 16 March 2014.4 In a time of political turbulence following the “Maidan” revolution in Ukraine, the “Crimean Spring”5 or the so-called “Crimean scenario” gained some degree of attractiveness for pro-Russian politicians and peoples from predominantly Eastern regions of Ukraine. Pro-Russian protesters agitated by disguised Russian nationals seized governmental and law enforcement buildings in Donetsk and Lugansk on 6 April 2014 and formed the parliaments – Narodnye Sovety (People’s Councils) – of the “young republics” on 7 April 2014 followed by the formation of so-called “people’s” governments on 8 April 2014. The respective People’s Councils proclaimed a Declaration of Sovereignty and Act of Statehood for the dpr on 7 April 2014 and for the lpr on 27 April 2014. Simultaneous referendums on self-determination of the dpr/lpr took place on 11 May 2014 in Donetsk and Lugansk and produced impressive figures of support for the statehood of the dpr/lpr among those who attended the election polls.6 The results of the referendums were recognized neither by the Ukrainian government nor by the international community.7 The final step in creation of the dpr/lpr was a proclamation of the confederation of these state-like entities under the label of “Novorossiya” on 24 May 2014.8 Following these events the People’s Councils of the dpr/lpr denounced the authority of the Ukrainian government and started forming executive and military structures. The Ukrainian government acknowledged de facto loss of control of the cities of Donetsk and Lugansk and parts of Ukrainian territory and denounced the People’s Council and other structures of the dpr/lpr as terrorist organizations and considered the use of military force to restore order and legitimacy in the region in the format of an “anti-terror” operation.9 Furthermore, on 5 June 2015 the Ukrainian government formally derogated from certain echr rights in line with Article 15 echr (derogation in time of war and other emergency).10

Active military engagement between the Ukrainian army and military formations of the dpr/lpr and disguised Russian military units11 lasted from 25 May to 5 September 2014 when the first ceasefire was formally agreed in Minsk (known as the Minsk i Agreement). Since 2014 the war has taken its toll by claiming loss of the lives of some 13200 Ukrainian, local and Russian military and paramilitary forces including civilians and about 31000 wounded.12 Up to two million Ukrainians have left their homes and residences. Malaysia Airlines flight MH17 was shot down by a “Buk”-type rocket with the loss of 298 lives.13 The economy of the whole of this part of Ukraine, once the most industrial and prosperous region of Ukraine-Donbas, has borne significant economic losses and a drastic fall in the standard of living.14

As of today, the dpr and lpr have proclaimed themselves as “democratic, social states based on rule of law”.15 However, they remain non-recognized states under international law since no UN Member State has recognized them. Hitherto, the dpr and lpr received formal recognition only from the non-recognized Republics of South Ossetia and Abkhazia. The dpr and lpr committed themselves to forming a federal union.16 However, this initiative never happened due to the ongoing “Minsk i and Minsk ii” agreements. Formally, the Russian Federation does not recognize the statehood of the dpr and lpr. Nevertheless, since 2017 the Russian government has admitted civil documents (birth and death certificates, passports and other documents) issued on the territory of dpr and lpr,17 and provides humanitarian, economic, and military assistance. Furthermore, Russia encourages immigration and integration of dpr and lpr residents to Russia through granting Russian citizenship and other means of support. This situation is reminiscent of the Russian legal position in relation to Abkhazia and South Ossetia until they were recognized as States by Russia in 2008. However, at that time, measures to simplify acquisition of Russian citizenship by residents of Abkhazia and South Ossetia were taken informally.18

Ukraine considers the dpr and lpr as terrorist organizations and Russia as a ‘country-aggressor’. The territories of the dpr and lpr are proclaimed as ‘temporarily occupied’, while Ukrainian nationals who reside in ‘temporarily occupied territories’ are encouraged to move to Ukraine-controlled territory where they can obtain the status of ‘displaced people’ and state social security payments.19

Among international organizations only the EU has explicitly expressed its own standing on the legal status of the dpr and lpr. The EU institutions express consistent support for the territorial sovereignty of Ukraine20 and label the dpr and lpr as “Non-Government Controlled Areas of Eastern Ukraine” (ngca).21 The EU and the EU Member States do not question the territorial sovereignty of Ukraine over the whole Donbas area (controlled and non-controlled by the government of Ukraine). Furthermore, the EU does not object to application of the EU-Ukraine aa within the ngca in the same way as it accepts application of the EU-Ukraine aa within occupied Crimea.22 This means that residents of the dpr and lpr holding Ukrainian citizenship (and dpr/lpr, Russian citizenship if this was issued automatically without the consent of the Ukrainian national concerned) may enjoy rights under the EU-Ukraine aa on the same basis as Ukrainian nationals. Goods produced in the dpr and lpr may be exported to the EU if they comply with Ukrainian rules of origin. The status of Ukrainian companies established in the dpr and lpr is not defined yet. However, without doubt a future Law on Implementation of the EU-Ukraine aa must determine the status of Ukrainian nationals and companies residing in the dpr and lpr regarding application of the aa in detail.

3 Constitutional Orders of the Republics of Donetsk and Lugansk People’s Republics

The Constitutions of the dpr and lpr were introduced to the populations of the separatist republics just a few days after the illegal referendum on the independence of these entities. There is no information about and no evidence of the authorship or source of these documents. Neither expert communities nor residents of the dpr/lpr took place in discussing the scope and content of these constitutions. There is a clear contradiction between the name and ideology behind the dpr and lpr as “people’s” republics and the statement that all power belongs to the people of these entities and the fact that the constitutions appeared out of the blue and were introduced to the people of these entities as ready-made documents. The Constitution of the dpr was adopted on 14 May 2014 and the Constitution of the lpr was adopted on 18 May 2014 by the parliaments (People’s Councils) of the dpr/lpr.

The Constitutions of the dpr and lpr are identical in terms of structure, scope, and wording. Both Constitutions comprise ten chapters and 86 articles. The structure and wording of these documents is homogeneous and contains chapters on: foundations of the constitutional order; protection of human rights and freedoms; separation of powers; legal status of the heads of these entities; parliament; cabinet of ministers; judiciary and the prosecutors’ office; local self-government; transitional provisions. However, the similarities between the Constitutions of the dpr and lpr go beyond mere structure, scope and wording but also contain the following common features.

The first common feature is that the Constitutions of the dpr and lpr are distinguished by their striking resemblance to the Constitution of the Russian Federation of 1993. Most of the texts of the dpr and lpr Constitutions are “copy-paste” texts from the Constitution of the Russian Federation as they existed before the constitutional amendments of 4 July 2020. However, certain differences are present in the texts of the Constitution of the Russian Federation and the Constitutions of the dpr and lpr. These differences are related mainly to the federal structure of the Russian Federation, citizenship, application of international treaties, and principles of international law. Some of these are discussed in detail further.

The second common feature – the “values” part of the Constitutions of the dpr and lpr – is based on so-called “ideological” freedoms. For example, the dpr/lpr Constitutions recognize not only a multi-party system and political diversity but also “ideological” diversity.23 Furthermore, the dpr Constitution pledges equal conditions for preservation and development of cultures of all nations residing within these entities. At the same time, the dpr/lpr Constitutions (Articles 9(4) of the dpr/lpr Constitutions) contain the so-called “anti-extremism” clause that condemns and bans any organization propagating “violence, fascism and nationalism”. This provision has already played a crucial role in prohibiting internationally operated religious organizations (the Jehovah’s Witnesses)24 on the territory of the dpr/lpr as will be shown below.

Third common feature is that the Constitutions of the dpr and lpr offer dual official languages, namely Russian and Ukrainian,25 in contrast to the Russian and Ukrainian Constitutions formalize only one official language.26 Recognition of two official state languages in the dpr and lpr is meant to display the equal standing of the two main ethnic groups (Russians and Ukrainians) and, therefore, to correspond to the principle of “ideological” diversity. However, this provision appears to be declarative in practice since the official language of the judiciary and trial courts is only Russian27 and predominantly all teaching within secondary and higher education is conducted in Russian whereas teaching in Ukrainian is not mandatory.28

The fourth common feature is that the Constitutions of the dpr and lpr omit articles of the Constitution of the Russian Federation on dual citizenship and prohibition of extradition of own nationals (Article 61–63 of the Constitution of the Russian Federation). However, recent practice shows that de facto a significant number of residents of the dpr and lpr possess three citizenships (Ukrainian citizenship, dpr/lpr citizenship, Russian citizenship). The Russian Government has been consistently easing conditions for Ukrainian citizens from Eastern Ukraine to acquire Russian citizenship.29 Finally, shortly after the presidential elections in Ukraine in April 2019 President Vladimir Putin gave the green light for residents of the dpr/lpr to acquire Russian citizenship following the fast track procedure without taking an obligatory test in Russian and without having either a residence permit or a work permit on the territory of Russia.30

The fifth common feature is that the constitutional orders of the dpr and ldr establish strong presidential republics that resemble the powers of the President of the Russian Federation. The people are recognized as the sole source of power in these territories. Separation of powers recognizes executive, legislative, and judicial powers. The heads (Глава – in Russian and Ukrainian) of the dpr and lpr are top executives and heads of state elected for five years with a maximum two terms in office.31 The legislature of the dpr and lpr are represented by the parliaments (People’s Councils), elected for 5 years and comprising 50 members in the lnr and 100 members in the dnr.32 The judiciary is represented by common, appellate (including commercial and military courts) and Supreme Courts of the dpr and lpr and bears some features inherited from the Soviet judiciary (for instance, judicial panels comprise one professional judge and two lay judges (narodnye zasedately).33 It is remarkable that only the judicial system of the dpr envisages the establishment of a Constitutional Court that is not yet in place.34 In the meantime all potential constitutional conflicts are still to be decided only by the Supreme Courts of these entities. This situation is common not only to the dpr/lpr but also to Abkhazia until 2016. This implies that most post-Soviet non-recognized entities are reluctant to institutionalize constitutional review even though their constitutions envisage it. This can be explained by the necessity to avoid constitutional review of legal acts which contradict fundamental democratic freedoms and human rights enshrined in their constitutions. There is no administrative judiciary in the dpr and lpr. Constitutional conflicts have already taken place in both the dpr and lpr but they never went through constitutional judicial proceedings. The first unconstitutional siege of power took place in lpr on 25 November 2017 when the city of Lugansk was suddenly occupied by unidentified armed “green men”. Consequently, the first elected head of the lpr, Ihor Plotnitskiy, filed his resignation with the lpr People’s Council. However, the transfer of power in the lpr did not take place in accordance with the relevant provisions of the lpr Constitution which envisaged that the Speaker of the People’s Council takes office in the case of voluntary resignation by the head of the lpr. Nevertheless, this provision of the lpr Constitution was changed in haste by the People’s Council to allow the lpr security service chief Leonid Pasechnik to be sworn in as acting head of the lpr.35 This means that the Constitution of the lpr was amended with the aim of avoiding legitimate transfer of power and to enable a specific personality to take up office. A second unconstitutional transfer of power took place in the dpr following the assassination of the first-elected head of the dpr, Alexander Zakharchenko, on 31 August 2018. According to the Constitution of the dpr, the deputy prime minister of the dpr, Dmitriy Trapeznikov, became the acting Head of the dpr.36 However, just a week later the Prosecutor’s Office of the dpr initiated a constitutional review and repealed this appointment as unconstitutional. The speaker of the People’s Council, Denis Pushilin, was appointed by the People’s Council as acting head of the dpr on the grounds that the power of the People’s Republic was entrusted to the People’s Council of the dpr.37

4 Potential Impact of the Constitutional Amendments of 2020 in Russia on the Constitutional Orders of the dpr and lpr

The constitutional amendments of 2020 were arguably one of the fastest fast-track procedures in the legal history of Russia and indeed worldwide. The process of the constitutional amendments was triggered by President Putin in his address to the Parliament on 15 January 2020. Already on 14 March 2020 the Parliament adopted the law on introducing 206 amendments to the Constitution of Russia of 1993.38 Then, Russian citizens were asked to endorse the constitutional amendments as a ‘single package’ at all-national voting that took place off and on-line and lasted for the period from 25 June to 1 July 2020. The ballot that contained only one question, namely “do you accept the amendments to the Constitution of the Russian Federation?”, asked Russians to choose between either a “yes” or a “no” answer. The all-national voting procedure was used for the first time in modern Russian history and was initiated by the President of the rf. In contrast to an all-national referendum, the all-national voting procedure does not require 50% of Russian citizens’ participation to be binding. Following a one-week voting marathon, 77.92% of voters endorsed the constitutional amendments and 21.27% rejected them. Official sources state that 67.7% of Russian citizens took part in all-national voting. On 3 July 2020 President Putin authorized the official publication of the amended Constitution, thus finalizing the process of entry into legal force of the constitutional amendments.39

The whole “package” of constitutional amendments covers the seven fundamental pillars of the Russian constitutional order. The first pillar deals with the historical foundation and political system of Russia. The relevant amendments confirm the already known fact that the Russian Federation became the successor to the extinct USSR in 1991, mention belief in God as a part of the historic heritage of the Russian state, and elevate the status of Russian as the language of the state-forming nation.40 The second pillar covers sensitive issues of “traditional family values” and human rights. Therein, the amended provisions of the Russian Constitution introduce the notion of “internal threats” to be eliminated by the state and define marriage as a “union between a man and a woman”.41 The third pillar revises the competence of the rf Parliament by introducing the procedure of parliamentary control.42 The fourth pillar recalibrates the balance of competences between the president and the government of the rf. In particular, the presidency of the rf considerably strengthens its own executive powers by obtaining the right to dismiss the head of government, to set up and to supervise federal executive agencies and institutions, to appoint and dismiss all federal ministers, and undertakes general management of the Cabinet of Ministers.43 The role of prime minister is diminished to manager of the Cabinet of Ministers. Furthermore, the relevant amendments enhance guarantees of immunity from prosecution of the President of the rf on leaving office.44 The fifth pillar addresses the issue of local self-government. The amendments declare the unity of public and local powers in Russia. Shared competences of federal and local powers were extended and now cover agriculture, youth, and culture.45 The sixth pillar impacts the judicial power in Russia. The amended Constitution grants the president power to appoint and dismiss Chief Justices of the Constitutional and Supreme Courts of the rf. Furthermore, the President of the rf may dismiss any judge for breach of oath.46 The seventh pillar of the Russian constitutional order embraces execution of decisions of international courts in Russia. The amendments empower the rf Constitutional Court with the exclusive competence to decide what decisions of international courts (including the ECtHR) can be executed in the Russian Federation.47 These amendments were strongly criticized by the Venice Commission.48 Last but not least the cherry on the cake is the so-called “zeroing” of presidential terms in office of current Russian President Putin, who has been in office since 2000. The amended provision of the Russian Constitution “gives the green light” for Mr Putin to be re-elected for fifth and sixth terms and to stay in office until 2036.49

It is argued that the amendments to the Russian Constitution in 2020 may potentially influence the political and legal orders of the dpr and lpr in two ways. The first may take place by introducing similar constitutional amendments to the Constitutions of the dpr and lpr. These potential amendments can aim at transposition of the Russian vision of “traditional family values” and human rights into the constitutional orders of the dpr and lpr. For instance, the notion of “internal threats” and the definition of marriage as a “union between a man and a woman” may be introduced into the preambles and founding provisions of the Constitutions of the dpr and lpr. The second may relate to establishment of the unquestionable primacy of the domestic legal orders of the dpr and lpr over conflicting principles of international law and international law documents by giving their Constitutional/Supreme Courts the final say on the matter, as indeed happened in the Russian Federation. It is believed that the second way is most likely to happen. There could be no need for such a politically and legal complicated undertaking since a significant number of dpr and lpr residents and all civil servants there have already obtained Russian citizenship. Therefore, the legal systems of these entities will be indirectly affected by the constitutional amendments in Russia since local judges and legal enforcement will be guided by the constitutional principles of the Russian Federation. It can be expected that local judges will be inclined to refer to the relevant provisions of the Russian Constitution in their decisions as a persuasive source of reference to “traditional family values” and “internal threats”.

5 International Law in the Constitutional Orders of the dpr and lpr

In the same vein as the Constitutions of Abkhazia and South Ossetia, the Constitutions of the dpr and lpr fail to specify the role of international law, international agreements, and principles of international law within their legal systems. The respective provisions of the Constitution of the Russian Federation on application of international treaties and principles of international law within the Russian legal order50 are missing in the Constitutions of the dpr and lpr. In our opinion, the relevant provisions of the Russian Constitution were intentionally omitted in the texts of the Constitutions of the dpr and lpr in order to avoid potential claims and requests for constitutional review by residents and companies located in the non-recognized entities.

Instead, rules on application of international treaties and principles of international law were adopted as lex specialis legal acts (Laws on International Treaties of the dpr/lpr). In particular, these laws clarify51 that: 1) international treaties of the [dpr/lpr] as well as recognized principles and norms of international law constitute part of their national legal systems; 2) if international treaties of the [dpr/lpr] conflict with relevant provisions of the national legislation the former prevail; 3) provisions of officially published international treaties of the [dpr/lpr] whose implementation does not require adoption of national legal acts are directly applicable within the legal systems of the [dpr/lpr]; 4) other provisions of international treaties of the [dpr/lpr] require simultaneous ratification and adoption of national implementation of legal acts; 5) in case of conflict between the Constitutions of the dpr and lpr and their international treaties the former prevail;52 6) if an international treaty requires change or amendment of provisions of the Constitution of the [dpr or lpr] its mandatory legal effect is only possible after adoption of national law and amendment/revision of the relevant provisions of the Constitution. To sum up, the legal systems of the dpr and lpr establish a mainly monist-like approach to the relation between international and national law. However, they establish enough constitutional checks and reservations to ensure that any international treaty and provisions of international law can be duly blocked in case of conflict or contradiction of the Constitutions of the dpr/lpr.

6 Responsibility for Ensuring Protection of Fundamental Human Rights in the dpr/lpr

The dpr/lpr’s Laws on International Treaties imply that, in theory, the judiciaries and executives of these non-recognized entities are required and expected to comply with international agreements and principles of international law. Furthermore, the dpr/lpr Constitutions state that the dpr and lpr recognize and guarantee the rights and freedoms of people in accordance with recognized principles and norms of international law.53 In similar vein, the Constitutions of the dpr and lpr give the right to people to ask intergovernmental bodies and agencies for protection of human rights and freedoms if all national measures are exhausted.54 However, in practice, there is a consistent problem of ensuring protection of fundamental human rights and applicability of the echr in the contested territories. Ukrainian nationals as well as Ukrainians who permanently reside on the territories of the dpr/lpr and voluntarily accepted so-called “dpr/lpr citizenships” and Russian citizenship do not have practical means to protect their fundamental human rights at the echr level in line with international standards.55

The ECtHR has considered several cases related to protection of fundamental human rights by Ukrainian nationals residing in the dpr/lpr. The issue of applicability of the echr on the territory of non-recognized or contested entities is defined not by rules of international law but by the echr itself. This means that any state party to the echr is responsible for application of the echr within all its territory conditional on the facts. Well-established case law of the ECtHR relates to application of the echr to the non-recognized and contested entities.56 The most relevant ECtHR judgments for Ukraine are Ilaşcu,57 Tsesar58 and Khlebik.59 To comply with the Ilaşcu judgment the Ukrainian Parliament adopted the law “On temporarily occupied areas of the Donetsk and Lugansk regions of Ukraine”.60 Therein, Ukraine confirms its jurisdiction and commitments to ensure protection of human rights and access to the judiciary for residents of “temporarily occupied” territories. However, the Russian Federation is vested with responsibility to compensate any material and non-material damage caused by the occupation of parts of the Donetsk and Lugansk regions of Ukraine in accordance with “norms and principles of international law”.

In the Khlebik and Tsesar judgments the ECtHR recognized that Ukraine had done “all it could” to ensure access by Ukrainian nationals residing in territory “outside Government control” [dpr/lpr] to the national judicial and social systems of Ukraine. The ECtHR recognized that Ukraine “had to take special measures which were not needed in other parts of the country” and all limitations of the rights of residents of the dpr/lpr “had been due to the objective situation of the hostilities in the areas the Government do not control and had not been disproportionate”. The Supreme Court of the dnr strongly criticized the ECtHR for these decisions, accusing the ECtHR of bias and ignoring the interests of residents of the dpr/lpr.61 In the meantime, the ECtHR has been experiencing an accelerating flow of claims on behalf of Ukrainians resident in the dpr/lpr in the matter of violation of their human rights on the territories of the non-recognized entities caused by the ongoing conflict in Donbas.62

Notwithstanding the freedom of “ideological diversity” proclaimed as a core value in the Constitution of the dpr, the judiciary of this non-recognized entity banned the activities of the internationally-based Christian denomination of Jehovah’s Witnesses on the pretext of prohibition of extremism. In this case the dpr Supreme Court replicated the restrictive approach of the Russian Supreme Court on fighting extremism and adopted mirror judgments in 2018 that led to prohibition of the Jehovah’s Witnesses’ activities on the territory of the dpr.63

In 2017 the Russian Supreme Court banned the Church of Jehovah’s Witnesses on the territory of the Russian Federation, qualified its activities as ‘extremist’ and confiscated all their property. The Russian Supreme Court considered the activities of the Jehovah’s Witnesses as “extremist” due to “instigation of national and religious discord, propaganda of religious supremacy and distribution of extremist religious literature”.64 In this judgment the Russian Supreme Court argued that international human rights acts (the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the echr) allow national restrictions to counter extremist activities. Further, in the opinion of the Russian Supreme Court, some international standards for combating extremism65 make it possible to interpret this phenomenon at the national level in a wider context. The Jehovah’s Witnesses judgment of the Russian Supreme Court triggered a complete ban and liquidation of the Jehovah’s Witnesses’ regional offices in Russia66 and penalizing their followers under Russian administrative and criminal laws. Nevertheless, the members of the Jehovah’s Witnesses Church challenged the Russian Supreme Court findings and sought protection of their rights with the ECtHR.67 About 120 cases regarding the Jehovah’s Witnesses members’ prosecutions in Russia are under consideration by the ECtHR.68

7 Concluding Remarks

In this chapter we have undertaken two tasks. First, we have sought to present a general overview of the historical background and foundations of the constitutional systems of non-recognized entities of the dpr/lpr. We have suggested that non-recognized entities of the dpr/lpr appeared in the result of geopolitical challenges caused by the collapse of the Soviet Union. Second, we have reviewed and underlined visible similarities and differences between the constitutional orders of the dpr/lpr. The institutional focus of our study enables us to link up the constitutional orders of the dpr/lpr to the constitutional order of the Russian Federation, which our study shows was incorporated on a predominantly “copy/paste” approach into the constitutional orders of dpr/lpr and may mirror the current constitutional amendments in the Russian Federation. Further, we have suggested that relations between international law and the legal systems of the non-recognized entities are not among the priorities in the Constitutions of the dpr/lpr. However, secondary legislation of these entities has established a mainly monist approach with enough checks and reservations to prevent international law from primacy within their legal orders. Finally, the mechanism of protection of human rights in the non-recognized entities can not be considered as in line with international standards. On the one hand, residents of the dpr/lpr can not rely on the non-recognized entities’ judiciary to ensure protection of their fundamental human rights and access to the ECtHR (capital punishment is allowed in the dpr). On the other hand, ECtHR case law unequivocally provides that (in our case, Ukraine) is responsible for ensuring access to its judiciary and means of protection of fundamental human rights for residents of the non-recognized entities on its territory. However, both ECtHR case law and the laws of Georgia and Ukraine on occupied territories impose full responsibility for violation of fundamental human rights upon the Russian Federation, which directly and indirectly supports the regimes in the non-recognized entities. Due to this complicated legal deadlock residents of the non-recognized entities in the dpr/lpr are not ensured adequate protection of their fundamental human rights in line with international and European standards.

Furthermore, our study shows that the constitutional systems of the dpr/lpr are products of ad hoc political situations at the moment of their birth and they continue to follow this pattern by transposing dynamic constitutional amendments in Russia. For instance, the dpr and lpr Constitutions omit the issue of dual/single citizenship thereby allowing residents of these territories to acquire Russian citizenship and to maintain their Ukrainian citizenship, thereby also being eligible for social support in Ukraine and Russia. The current lacuna of references to the application of international law in the dpr/lpr Constitutions may be filled in by transposing the relevant provisions of the constitutional amendments to the Russian Constitution in 2020.

The constitutional orders of the dpr/lpr are reminiscent of the theory of the “façade” or “fake” constitution by Giovanni Sartori.69 In Sartori’s opinion, façade constitutions assume the appearance of “true constitutions”. However, in terms of liberty and human rights they are “trap-constitutions” and constitute a “dead letter”. Our scrutiny of the constitutional systems of these non-recognized entities through their capacity to offer and ensure internationally-recognized democratic freedoms and protection of fundamental human rights to their residents strongly supports this presumption.

*

This chapter is based on Roman Petrov, Gaga Gabrichidze, and Paul Kalinichenko, “Constitutional Orders of Non-Recognized Entities in Georgia and Ukraine. Can façade Constitutions Ensure Adequate Protection of Human Rights?”, 45(1) Review of Central and East European Law (2020), 92–125.

1

Answering a question about the origin of the “green men” in Crimea, Vladimir Putin recognized that “Russian servicemen did back the Crimean self-defence forces. They acted in a civil but decisive and professional manner”, Direct Line with Vladimir Putin, 17 April, 2014, available at: <http://eng.kremlin.ru/news/7034>. See also, interview with Vladimir Putin in documentary by Andrey Kondrashov “Crimea: The Way Home”, available at <https://www.youtube.com/watch?v=t42-71RpRgI>. This interview was referred to in the ECtHR decision Ukraine v. Russia (re Crimea) delivered on 14 January 2021 as evidence of the “effective control” of Crimea by the Russian Government from 27 February to 18 March 2014.

2

Declaration of Independence of the Autonomous Republic of Crimea and the City of Sevastopol of 11 March 2014, available at: <https://www.voltairenet.org/article182723.html>.

3

On 6 March 2014 the Supreme Council of Crimea voted for accession to the Russian Federation and put this question on referendum that took place on 16 March 2014. The timeline of the annexation of Crimea is available at <https://www.reuters.com/article/us-ukraine-crisis-timeline/timeline-political-crisis-in-ukraine-and-russias-occupation-of-crimea-idUSBREA270PO20140308>.

4

On the legal status of the self-determination referendum in Crimea in March 2014 see Jure Vidmar, “The Annexation of Crimea and the Boundaries of the Will of the People”, 16(3) German Law Journal (2015), 366–383. Simone van den Driest, “Crimea’s Separation from Ukraine: An Analysis of the Right to Self-Determination and (Remedial) Secession in International Law”, 62 Netherlands International Law Review (2015), 329–363. Christian Marxsen, “The Crimea Crisis from an International Law Perspective”, 2 Kyiv-Mohyla Law and Politics Journal (2016), 13–36.

5

The whole process of the annexation of Crimea was quick and bloodless for the Russian side and caused a rousing wave of patriotism and public support within the ruling Russian political elite. It was a successful propaganda event branded as the “Crimean Spring”.

6

Results of the referendums were 89.07% in favor of independence of the dpr and 10.19% against and 96.2% in favor of independence of the lpr. However, there is no official information on the exact number of people in the Donetsk and Lugansk regions who took part in the referendums. More information is available at <https://www.bbc.com/russian/international/2014/05/140512_ukraine_east_referendum_results>.

7

William Hague, “Ukraine referendum has “zero credibility”, The Telegraph, 12 May 2014. Available at <https://www.telegraph.co.uk/news/worldnews/europe/ukraine/10824573/William-Hague-Ukraine-referendum-has-zero-credibility.html>.

8

Law of the lpr “On Constitutional Act on the establishment of the Union of People’s Republics”, 25 June 2014, № 11-І. Zakon lnr «О Konstitutsionnom akte o sozdanii Soiuza narodnykh respublik”, 25 Iunia 2014 goda, № 11-І, available at <https://nslnr.su/zakonodatelstvo>.

9

Edict of the Acting President of Ukraine “About the Decision on the Council on National Security and Defence of Ukraine of 13 April 2014 “About Urgent Measures to Combat Terrorist Threats and Preservation of the Territorial Unity of Ukraine”. 14 April 2014, No 405/2014. Ukaz Presidenta Ukrainy “Pro Risheniya Rady natsionalnoi bezpeki i oborony Ukrainy vid 13 kvitnya 2014 roku “Pro nevidkladni zakhody shodo podolannya teroristichnoy zagrzy I zberezhennia territorialnoy tsilisnosti Ukrainy”, 14 kvitnya 2014 roku №405/2014. Law of Ukraine “About temporary measures in duration of the anti-terror operation”, 02 September 2014, №1669-vii. Zakon UkrainyPro tymchasovy zakhody na period provedenia antiterroristichnoy operatsii”, 2 veresniya 2014 roku, №1669-vii.

10

Art. 15 echr allows the government of the Member States, in exceptional circumstances, to derogate, in a temporary and supervised manner, from their rights to secure certain rights of their nationals under the echr. To date, only eight parties to the echr have formally derogated pursuant to Art. 15 echr: Albania, Armenia, France, Georgia, Greece, Ireland, Turkey and the UK, available at <https://www.echr.coe.int/Documents/FS_Derogation_ENG.pdf>.

11

On evidence of the presence of the Russian army in Donbas see Adam Cech, Jakub Janda, “Caught in the Act: Proof of Russian Military Intervention in Ukraine”, Martens Centre Research Paper, July 2015, available at <https://www.martenscentre.eu/publications/caught-act-proof-russian-military-intervention-ukraine>.

12

Report on the human rights situation in Ukraine, 2020, Office of the United Nations High Commissioner for Human Rights, available at <https://www.ohchr.org/Documents/Countries/UA/29thReportUkraine_EN.pdf>.

13

According to the conclusions of the Dutch Safety Board’s accident investigation, the aircraft was shot down with a Soviet-designed 9M38 “Buk” missile. See: Crash of Malaysia Airlines flight MH17, Dutch Safety Board, The Hague, October 2015, available at: <https://www .onderzoeksraad.nl/uploads/phase-docs/1006/debcd724fe7breport-mh17-crash.pdf>. The Joint Investigation Team composed of experts from the Netherlands, Belgium, Ukraine, Australia and Malaysia issued a report that the “Buk” missile was fired from a rebel-controlled area of Eastern Ukraine that was transported from the Russian territory on the day of the crash, available at <https://www.onderzoeksraad.nl/en/page/6959/found-buk-missile-parts-in-final-report-dutch-safety-board>. On the legal perspective of this incident see: Marieke de Hoon, “Navigating the Legal Horizon: Lawyering the MH17 Disaster”, 33(84) Utrecht Journal of International and European Law (2017), 90–119.

14

In experts’ view as a result of the conflict in Donbas the economy of Ukraine lost about 20% gdp in the period 2014–2018, see Julia Bluszcz, Marica Valente, “The War in Europe: Economic Cost of the Ukrainian Conflict”, diw Discussion Papers, 1804, 2019, available at <https://www.diw.de/documents/publikationen/73/diw_01.c.622006.de/dp1804.pdf>.

15

Arts. 1(1) of the dpr/lpr Constitutions.

16

Law of the lpr, “On Constitutional Act on the establishment of the Union of People’s Republics”, 25 June 2014, № 11-І. Zakon lnr «О Konstitutsionnom akte o sozdanii Soiuza narodnykh respublik”, 25 Iunia 2014 goda, № 11-І, available at <https://nslnr.su/zakonodatelstvo>.

17

Edict of the President of the Russian Federation “On definition of humanitarian grounds of categories of persons who can apply for citizenship of the Russian Federation under simplified procedure”, 24 April 2019, №183. Ukaz Presidenta rf “Ob opredelenii v gumanitarnykh tseliakh kategorii lits imeiushikh prave obratit’sia s zaiavleniami o prieme v grazhdanstvo RF v upreshennom poriadke”, 24 aprelia 2019 goda, №183. Edict of the President of the Russian Federation, „On recognition in the Russian Federation of documents and registration plates of vehicles issued to citizens of Ukraine and stateless persons who permanently live in certain parts of Donetsk and Lugansk regions of Ukraine”, 18 February 2017, №74. Ukraz Presidenta rf “O priznanii v RF dokumentov i registratsionnykh znakov transportnykh sredstv, vydanykh grazhdanam Ukrainy i litsam bez grazhdanstva, postoyanno prozhivaiushim na territorii otdelnykh raionov Donetskoi i Luganskoi oblastei Ukrainy”, 18 fevral’ya 2017 goda, №74.

18

See, Letter from the Russian State Customs Committee “On the application of exemptions in the payment of customs duties to goods originating from the territory of the Republic of Abkhazia”, 10 January 1995, No 01-13/251. Pismo gtk rf “O primenenii lgot po uplate tamozhennykh platezhey v otnoshenii tovarov, proiskhodyashchikh s territorii Respubliki Abkhaziia”, 10 ianvarya 1995, N 01-13/251. Letter from the Russian Federal Customs Service “On the internal republican passports of citizens of South Ossetia”, 5 February 2007, No 04-16/3764. Pismo fts rf “O vnutrennykh respublikanskikh pasportakh grazhdan Iuzhnoi Osetii”, 5 fevralya 2007, N 04-16/3764.

19

Law of Ukraine “On particularities of state policy on ensuring state sovereignty of Ukraine on temporarily occupied territories of Donetsk and Lugansk regions”, 18 January 2018, №2268-viii. Zakon Ukrainy “Pro osoblyvosty derzhavnoy politiky iz zabezpechenia derzhavnogo suverenitetu Ukrainy na tymchasovo okupovanykh teritoriakh y Donetskiy ta Luganskiy oblastiah”, 18 sichnya 2018, №2268-viii.

20

For example, remarks by HR Federica Mogherini following the 5th EU-Ukraine Association Council on 17 December 2018.

21

Association Implementation Report on Ukraine, Brussels, 7/11/2018, swd(2018) 462 final.

22

For detailed analysis on application of the EU-Ukraine aa within occupied Crimea see Guillaume Van der Loo, Peter Van Elsuwege, Roman Petrov, “The EU-Ukraine Association Agreement: Assessment of an Innovative Legal Instrument”, European University Institute Working Papers (Department of Law), 2014/09.

23

Art. 9 of the Constitutions of the dpr and lpr. The Constitution of the dpr is available at <https://dnr-online.ru/download/konstitutsiya-donetskoj-narodnoj-respubliki/>. The Constitution of the lpr is available at <https://nslnr.su/zakonodatelstvo/konstitutsiya/>.

24

Prohibited within the territory of the Russian Federation.

25

Art. 10 of the Constitutions of the dpr and lpr.

26

It must be noted that subjects of the Russian Federation have a right to formalise a second official language within their administrative borders. According to Art. 68(2) of the Russian Constitution: “The Republics shall have the right to establish their own state languages. In the bodies of state authority and local self-government, state institutions of the Republics they shall be used together with the state language of the Russian Federation”.

27

It concerns only the dpr (Art. 10 Law of the dnr “About Judicial System of the Donetsk People’s Republic”, 10 September 2018, No 241-ihc) while the lpr allows a trial to be conducted in one of the official state languages (Art. 10 Law of the lnr “About the Judicial System of the Lugansk People’s Republic”, 28 August 2018, No 260-ii).

28

See web portals of the Ministries of Education and Science of the dpr and lpr http://mondnr.ru/en/ and https://sovminlnr.ru/sostav-ministrov/9-ministr-obrazovaniya-i-nauki-luganskoy-narodnoy-respubliki.html.

29

Edict of the President of the Russian Federation “On recognition in the Russian Federation of documents and registration plates of vehicles issued to citizens of Ukraine and stateless persons who permanently live in certain parts of Donetsk and Lugansk regions of Ukraine”, 18 February 2017, №74. Ukraz Presidenta rf “O priznanii v RF dokumentov i registratsionnykh znakov transportnykh sredstv, vydanykh grazhdanam Ukrainy i litsam bez grazhdanstva, postoyanno prozhivaiushim na territorii otdelnykh rayonov Donetskoi i Luganskoi oblastei Ukrainy”, 18 fevralya 2017 goda, №74.

30

Federal Law of the Russian Federation “On amending the Federal Law “On citizenship of the Russian Federation”, 27 December 2018, №544-ФЗ. Federalniy Zakon rf “O vnesenii izmenenii v Federalnii Zakon “O grazhdanstve RF”, 27 dekabria 2018 goda, №544-ФЗ. Edict of the President of the Russian Federation “On determination of categories of persons who can apply for rf citizenship on humanitarian grounds following simplified procedure”, 24 April 2019, №183. Ukaz Presidenta rf “Ob opredelenii v gumanitarnykh tseliiakh kategorii lits imeiushih prave obratit’sia s zaiavleniami o prieme v grazhdanstvo RF v upreshennom poriadke”, 24 aprelia 2019 goda, №183. The above legal acts ease the requirement for residents of the dpr and lpr wishing to obtain Russian citizenship to have their official residence (registration) in Russia. Also, these acts minimize the list of documents to be attached to an application for Russian citizenship by residents of the dpr and lpr. Furthermore, the Edict of the President limits the period for consideration of Russian citizenship applications by the Russian authorities to 3 months. About 220 000 Ukrainian nationals residing in the dpr and lpr obtained Russian citizenship in 2019 and 109 000 more Ukrainian nationals obtained Russian citizenship in the period January–March 2020, available at <https://www.interfax-russia.ru/rossiya-i-mir/rossiyskoe-grazhdanstvo-v-yanvare-marte-poluchili-bolee-100-tys-ukraincev>. At the same time by February 2020, 950 4005 residents of the dpr and lpr and 135 000 residents of Crimea obtained Ukrainian biometric passports that give right of visa-free travel to the EU (Schengen zone), available at <https://lb.ua/society/2020/02/24/450763_pochti_million_ukraintsev.html>.

31

Art. 57(2) of the dpr Constitution and of the lpr Constitution.

32

Art. 63(2) of the dpr Constitution and of the lpr Constitution.

33

Arts. 4(2), 5(2) Law of the dpr “On the judicial system of the dpr”, 10 September 2018, №241-ІНС (Zakon dnr “O sudebnoi sisteme dnr”, 10 sentiabria 2018 goda, №241-ІНС) and Law of the lpr “On the judicial system of the lpr”, 30 April 2015, №18-ІІ (Zakon lnr “O sudebnoi sisteme lnr”, 30 aprelia 2015 goda, №18-ІІ).

34

Ibid., Art. 4(2).

35

See Art. 62 lpr Constitution to which was added the following provision on 25 November 2017 “In case of early termination of office of the Head of the lpr and if the Head of the lpr can not fulfil his duties, the speaker of the People’s Council temporarily takes up the office” to which was added “or a citizen of the lpr who is at least 30 years old with rights of passive vote and who was recommended either by the People’s Council or by the Head of the lpr”.

36

In September 2019 Dmitriy Trapeznikov was appointed Mayor of the city of Ellista in the region of Kalmykia in the Russian Federation. This appointment caused widespread protests by local population, available at <https://www.svoboda.org/a/30193305.html>.

37

Art. 62 Constitution of the dpr at the time of the assassination stated that “In case the Head of the dpr can not fulfil his duties either the deputy prime-minister (if the Head of the dpr does not occupy this office) temporarily occupies the office of Head of the dpr”. On 30 November 2018 this article of the Constitution of the dpr was amended limiting the right of succession solely to the Prime Minister of the dpr.

38

Federal Law of the Russian Federation on Amendment to the Constitution of the Russian Federation “On enhancing regulation of some issues of organization and function of public governance”, 14 March 2020, №1-ФКЗ. Federalnii Zakon rf o Popravke k Konstitutsii rf “O sovershenstvovanii regulirovania otdelnykh voprosov organisatsii i funktsionirovania publichnoi vlasti”, 14 marta 2020 goda, №1-ФKЗ.

39

Edict of the President of the Russian Federation “On official publication of the Constitution of the rf with amendments”, 03 July 2020, №445. Ukaz Presidenta rf “Ob ofitsial’nom opublikovanii Konstitutsii rf s vneseniami v nee popravkami”, 03 iulya 2020 goda, №445.

40

Arts. 67–68 Constitution of the Russian Federation.

41

Arts. 83 and 114 Constitution of the Russian Federation.

42

Art. 103 Constitution of the Russian Federation.

43

Arts. 83 and 112 Constitution of the Russian Federation.

44

Arts. 92–93 Constitution of the Russian Federation.

45

Arts. 80 and 132(3) Constitution of the Russian Federation.

46

Art. 83 Constitution of the Russian Federation.

47

Art. 79 Constitution of the Russian Federation.

48

Opinion on draft amendments to the Constitution (as signed by the President of the Russian Federation on 14 March 2020) related to execution in the Russian Federation of decisions by the European Court of Human Rights, adopted by the Venice Commission on 18 June 2020 by written procedure replacing the 123rd Plenary Session, 68 (cdl-ad(2020)009-e).

49

Art. 81(3) Constitution of the Russian Federation.

50

Art. 15(4) Constitution of the Russian Federation.

51

Arts. 4 and 15(5) Law of the dpr “On international treaties”, 25 June 2015, No 66-ihc (Zakon dnr “O mezhdunarodnykh dogovorakh”, 25 Iunia 2015 goda, №66-ІНС) and Art. 4 Law of the lpr “On international treaties”, 8 October 2018, No 274-ii (Zakon lnr “O mezhdunarodnykh dogovorakh”, 08 oktiabria 2018 goda, №274-ІI). Art. 15(5) of this law states that “If an international treaty of the dpr conflicts with national legislation and requires adoption of new laws or amending existing laws of the dpr, ratification can take place only after or simultaneously with adoption or amending the relevant legislation of the dpr.”

52

Art. 21 Law of the dpr and lpr on International treaties.

53

Art. 12(1) dpr/lpr Constitutions.

54

Art. 39(3) dpr/lpr Constitutions.

55

UN Human Rights Report 2018, available at <https://www.ohchr.org/Documents/Publications/OHCHRreport2018.pdf>. EU Annual Report on Human Rights and Democracy in the World 2018, 13 May 2019, 9024/19, Report of the Special Rapporteur on the human rights of internally displaced persons in Ukraine, 2 April 2015, available at <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/070/53/PDF/G1507053.pdf?OpenElement>.

56

Marko Milanović and Tatjana Papić, “The Applicability of the ECHR in Contested Territories,” 67(4) International and Comparative Law Quarterly (2018), 779–800.

57

Ilaşcu et al. v. Moldova and Russia, App. No. 48787/99, Judgment of 8 July 2004.

58

Tsezar and Others v. Ukraine, App. Nos. 73590/14, 73593/14, 73820/14, 4635/15, 5200/15, 5206/15, and 7289/15, Judgment of 13 February 2018.

59

Khlebik v. Ukraine, App. No. 2945/16, Judgment of 27 July 2017.

60

Law of Ukraine “On particularities of state policy on ensuring state sovereignty of Ukraine on temporarily occupied territories of Donetsk and Lugansk regions”, 18 January 2018, №2268-viii. Zakon Ukrainy “Pro osoblyvosty derzhavnoy politiky iz zabezpechenia derzhavnogo suverenitetu Ukrainy na tymchasovo okupovanykh teritoriakh y Donetskiy ta Luganskiy oblastiah”, 18 sichnya 2018, №2268-viii.

61

In particular, the Supreme Court of the dpr accused the ECtHR of “political bias … and hypocritical segregation of claimants in classes in order to serve the interests of a certain circle of its clients”, available at <https://supcourt-dpr.su/press/osobennosti-resheniya-evropeyskogo-suda-po-pravam-cheloveka-po-delu-cezar-i-drugie-protiv>.

62

Ukrainian Judge of the ECtHR Anna Yudkivska states that by February 2018 the ECtHR had received about 4000 claims from residents of Donbas: 2800 of them were against Ukraine and 240 against Russia, available at <https://www.eurointegration.com.ua/rus/interview/2018/10/31/7088697>.

63

Judgment of the Supreme Court of the dpr, 22 August 2018, № 2о/100/4/2018. Judgment of the Supreme Court of the dpr, 26 September 2018, № 2о/100/5/2018, available at <https://supcourt-dpr.su/srpe>.

64

Judgment of the Supreme Court of the Russian Federation, 20 April 2017, № АКПИ17-238.

65

The Supreme Court of the Russian Federation referred to the Shanghai Convention on Combating Terrorism, Separatism and Extremism 2001, pace Resolution 1344 (2003) “Threat posed to democracy by extremist parties and movements in Europe”.

66

E.g. in 2017 Russian rock musician Fyodor Chistyakov left Russia since, as a follower of the Jehovah’s Witnesses, he could no longer worship in Russia. See: Yan Shenkman, Why Fyodor Chistyakov left Russia. Premiere of the “Nol” band song and its leader’s statement about his departure from the Russian Federation, Novaya Gazeta No. 83, 2 August 2017, Ян Шенкман, Почему Федор Чистяков покинул Россию. Премьера песни группы «Ноль» и заявление ее лидера об отъезде из РФ, Новая газета № 83, 2 августа 2017 г., available at <https://www.novayagazeta.ru/articles/2017/07/31/73296-pochemu-fedor-chistyakov-pokinul-rossiyu>.

67

Administrative Centre of Jehovah’s Witnesses in Russia and Kalin v. Russia (App. no. 10188/17) – Communicated 1 December 2017.

68

Moskalenko Versus Russia: a New Complaint Filed With the echr on Behalf of Jehovah’s Witnesses, Jehovah’s Witnesses in Russia, available at <https://www.sova-center.ru/religion/news/harassment/harassment-protection/2019/01/d40534/>.

69

Giovanni Sartori, “Constitutionalism: A Preliminary Discussion”, 56(4) The American Political Science Review (1962), 853–864.