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Constitutional Orders of Non-Recognized Entities in Georgia and Ukraine. Can façade Constitutions Ensure Adequate Protection of Human Rights?

In: Review of Central and East European Law
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Roman Petrov National University of Kyiv-Mohyla Academy, Kyiv, Ukraine, roman.petrov@ukma.edu.ua

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Gaga Gabrichidze New Vision University, Tbilisi, Georgia, ggabrichidze@newvision.ge

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Paul Kalinichenko Kutafin Moscow State Law University, Moscow, Russian Federation pakalinichenko@msal.ru

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This article analyses the foundations of the constitutional and legal orders of selected non-recognized entities in Georgia and Ukraine, namely the so-called “Republic of Abkhazia”, the “Republic of South Ossetia” and the “Donetsk/Lugansk Peoples’ Republics”. Additionally, this article pursues the objective of clarifying 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. It is argued that the constitutional orders of Abkhazia and South Ossetia and the Donetsk/Lugansk Peoples’ Republics are distinguished by a few undeniable similarities and “sources of inspiration”. Furthermore, residents of these entities experience similar problems regarding protection of their fundamental rights and application of international conventions on human rights.

Abstract

This article analyses the foundations of the constitutional and legal orders of selected non-recognized entities in Georgia and Ukraine, namely the so-called “Republic of Abkhazia”, the “Republic of South Ossetia” and the “Donetsk/Lugansk Peoples’ Republics”. Additionally, this article pursues the objective of clarifying 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. It is argued that the constitutional orders of Abkhazia and South Ossetia and the Donetsk/Lugansk Peoples’ Republics are distinguished by a few undeniable similarities and “sources of inspiration”. Furthermore, residents of these entities experience similar problems regarding protection of their fundamental rights and application of international conventions on human rights.

1 Introduction

Geopolitical changes following the collapse of the Soviet Union in 1991 and striving for global power by Putin’s Russia have led to continuing political and security turbulence within the entire post-Soviet area. One facet of these processes is the emergence of non-recognized entities that aspire to acquisition of full statehood and recognition under international law.

The focus of this article is neither to study the legal and political prerequisites for the appearance of non-recognized entities in the Post-Soviet area nor to analyze whether they fulfil all criteria of statehood in line with international public law. The objectives of this article are much narrower. The first objective is to analyze and to compare the foundations of the constitutional and legal orders of selected non-recognized entities in Georgia and Ukraine, namely the so-called “Republic of Abkhazia”, “Republic of South Ossetia” and the “Donetsk/Lugansk Peoples’ Republics”. 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 the standards of international public law and European law. The choice of non-recognized entities can be explained as follows. First of all, the Donetsk/Lugansk Peoples’ Republics are the newest (along with Abkhazia, South Ossetia, Transdnistria and Nagorno-Karabakh) to join the group of non-recognized entities within the post-Soviet area. Next, the case of Crimea is omitted because it does not possess its own constitutional and legal system, having been engulfed within the Russian constitutional system after annexation in March 2014. Thirdly, the constitutional orders of Abkhazia, South Ossetia and the Donetsk/Lugansk Peoples’ Republics are distinguished by some undeniable similarities and ‘sources of inspiration’ that will be discussed in detail below. Furthermore, residents of these entities experience similar problems regarding protection of their fundamental rights and application of international conventions on human rights.

The first part of the article deals with the historical background to the appearance and legal status of the Republic of Abkhazia, the Republic of South Ossetia, and the Donetsk/Lugansk Peoples’ Republics in terms of 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 the relevant case law of the European Court of Human Rights (ECtHR) on access by residents of Abkhazia, South Ossetia and the Donetsk/Lugansk Peoples’ Republics to human rights protection under 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 on the territories of non-recognized entities that exist in a permanent environment of uncertainty, violence, and frozen conflicts. Therefore, the authors have limited their argumentation to references to official documents and open internet sources. This article is one of the first on the subject matter and fills in an – as yet unexplored – lacuna in terms of study of non-recognized entities in post-Soviet space. This article scrutinizes the constitutional orders of Abkhazia, South Ossetia and the Donetsk/Lugansk Peoples’ Republics through the prism of the theory of the “façade” or “fake” constitution by Giovanni Sartori. 1 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”. 2 Consequently, we intend to scrutinize the constitutional systems of these non-recognized entities in Ukraine and Georgia through their capacity to offer and ensure internationally-recognized democratic freedoms and protection of fundamental human rights to their residents.

2 Historical Background and Current Status Quo of the Legal Systems of Abkhazia and South Ossetia

Georgia’s strong aspirations to national independence shortly before the break-up of the Soviet Union intensified serious ethnic tensions within the country. The Soviet Socialist Republic of Georgia has never been ethnically homogeneous. Apart from the predominantly Georgian-populated Autonomous Republic of Adjara, Soviet Georgia also comprised autonomous entities – the Autonomous Republic of Abkhazia and the South Ossetian Autonomous Region – wherein ethnic Abkhazians and Ossetians claimed their right of self-determination. These ethnic groups strongly opposed the newly-emerged independence of Georgia for historical, political, and cultural reasons. 3 On 25 August 1990 the Abkhaz Autonomous Republic adopted a declaration of state sovereignty, followed on 20 September 1990 by the South Ossetian Autonomous Region. These declarations were promptly annulled by the Georgian Parliament (Supreme Council). In response to these events the Georgian Supreme Council abolished the South Ossetian Autonomous Region as a separate administrative unit within the Republic of Georgia on 11 December 1990. 4 Georgia was one of the first Soviet republics (along with the Baltic republics: Latvia, Estonia, and Lithuania) to declare independence on 09 April 1991 following the results of the Georgian referendum on the matter of independence on 31 March 1991. Nevertheless, both autonomous entities boycotted the referendum since they had voted for preservation of the Soviet Union in the all-ussr referendum on 17 March 1991. 5 Following the official dissolution of the Soviet Union on 31 December 1991 Georgia acquired full independence. Soon after, Georgia was internationally recognized within the boundaries of the Georgian Soviet Socialist Republic that subsequently included the Abkhazian and South Ossetian autonomous entities. Nevertheless, on 23 July 1992 the Abkhaz regional parliament adopted the Abkhaz Constitution of 1925 that claimed full independence of Abkhazia from Georgia. These events caused a bloody military conflict between Georgia and Abkhazia in July 1992 which resulted in Georgia’s military defeat and expulsion from Abkhazia of the entire ethnic Georgian population which prior to the military conflict had made up 45.7% of the population of Abkhazia. 6 The Kodori Valley – the only part of Abkhazia which remained under Georgian control – was finally seized by Abkhaz military forces in August 2008 in the course of the war between Georgia and Russia.

A similar scenario took place on 19 January 1992 in Tskhinvali Region/South Ossetia, where – in a referendum which was condemned by Georgia as “illegal” – a convincing majority of residents voted in favor of joining the Russian Federation. As a result, Ossetians plunged into an armed confrontation with Georgia which was terminated only due to a cease-fire agreement (the so-called “Sochi Agreement”) 7 initiated on behalf of the Georgian leader (at that time – Chairman of the State Council of Georgia) Eduard Shevardnadze and Russian President Boris Yeltsin on 24 June 1992. The Sochi Agreement lasted until August 2008 when large-scale military activities between Georgia and Russia in Tskhinvali Region/South Ossetia started on the night of 7 to 8 August 2008. The “Russo-Georgian war” threatened the mere existence of independent Georgia and all hostilities were terminated only upon conclusion of the EU-brokered Six-Point Ceasefire Agreement between Russia and Georgia on 12 August 2008. 8

As a result of this war, Georgia completely lost control over the territories of Abkhazia and Tskhinvali Region/South Ossetia. Subsequently, these territories were recognized as independent states by the Russian Federation on 26 August 2008 and by a handful of its allies. 9 To enhance the status quo and to cement its patronage the Russian Federation was quick to conclude many bilateral agreements with the Republics of Abkhazia and South Ossetia.

In particular, in the eleven years following the war, Russia concluded more than fifty bilateral agreements with the Republics of Abkhazia and South Ossetia. 10 All these agreements are part of the Russian legal order in accordance with Article 15(4) of the Russian Constitution. Bilateral international legal activity was launched by the “Treaties on Friendship, Cooperation and Mutual Assistance”. 11 These two similar documents concluded by Abkhazia and South Ossetia with Russia in 2008 were later supplemented with new framework treaties. In particular, these took the form – in relations with Abkhazia – of the Treaty between the Russian Federation and the Republic of Abkhazia on Alliance and Strategic Partnership 2014, 12 and – in relations with South Ossetia – of the Treaty between the Russian Federation and the Republic of South Ossetia on Alliance and Integration 2015. 13

In addition to allied commitments (formulated in the manner of Article 5 of the North Atlantic Treaty 1949) and close cooperation in foreign and defense policy, the new framework treaties define the Russian ruble as the Abkhazian and South Ossetian currency unit and provide for social and economic aid from the Russian side, including co-financing of the republics’ state apparatus from the Russian state budget. They simplify the grant of Russian citizenship for permanent residents of Abkhazia and South Ossetia, as well as offering additional social security guarantees for Russian citizens who permanently reside in Abkhazia and South Ossetia. These treaties also create a basis for further sectoral bilateral agreements in the areas of state borders, defense, internal affairs, migration and visa-free travel, transport, trade, investment, fisheries, social security, culture, environment, education, and recognition of qualifications.

Arguably the treaties concluded by Russia with Abkhazia and South Ossetia pursue the objective of their gradual integration into Russian and Eurasian legal spaces. For instance, they contain obligations on approximation of the laws of Abkhazia and South Ossetia with the provisions of Russian law. In particular, the Treaties of 2008 stipulate adoption of ‘measures to unify legislation’ [authors’ emphasis] in the economic activity area, including civil and tax legislation, as well as in the social security field. 14 The 2014 Treaty on Alliance and Strategic Partnership between Russia and Abkhazia provides for: gradual unification of standards [authors’ emphasis] in military management and logistics, payments to military personnel and social guarantees for them; 15 adopting laws, which correspond [authors’ emphasis] to the public health fundamentals of the Russian Federation 16 and to Russian legislation in the educational field; 17 and establishing similar requirements [authors’ emphasis] for individuals to carry out medical and pharmaceutical activities. 18 The 2015 Treaty of Alliance and Integration between Russia and the South Ossetia pursues less ambitious objectives in the field of legal approximation. It does not go further than committing South Ossetia to adopt laws which correspond [authors’ emphasis] to Russian legislation in the field of education. 19

Moreover, the 2015 Treaties of Alliance between Russia and the Republics of Abkhazia and South Ossetia contain legislative approximation clauses on implementing the Eurasian Economic Union (eaeu) customs acquis with a view to “making conditions for the full participation of the Republic of Abkhazia in post-Soviet space integration processes implemented by the initiative and /or support of the Russian Federation” [authors’ emphasis]. 20 To fulfill these objectives Abkhazia is expected to implement measures to harmonize its legislation [authors’ emphasis] with the Eurasian Economic Union customs acquis, and in part, not regulated by relevant Eurasian Economic Union customs acquis, with the legislation of the Russian Federation. 21 The 2015 Treaty of Alliance and Integration between Russia and South Ossetia contains a slightly different approximation clause: ‘the South Ossetian Republic customs bodies integrate with the Russian Federation customs bodies by applying Customs Union legislation and Russian Federation legislation in customs affairs’. 22 It should be noted that eaeu legislation and Russian legislation on customs affairs has been considerably aligned with the relevant EUacquis following the so-called “back door approximation” and other measures taken by Russia and other eaeu countries to approximate their customs legislation with EU rules and standards under bilateral agreements with the European Union. 23

The international community unequivocally recognizes the territorial integrity of Georgia, which means that neither international organizations nor international courts have offered coherent statements on the legal status of Abkhazia and South Ossetia under international law. However, the legal status of these entities was extensively discussed in the report by the Independent International Fact-Finding Mission on the Conflict in Georgia. 24 Therein, the Mission concluded that the Republics of Abkhazia and South Ossetia should not be recognized as independent states. Nevertheless, Abkhazia – unlike South Ossetia 25 – in the opinion of the Mission possesses some characteristics of statehood. However, the Report states that the process of state-building in Abkhazia was not legitimate since Abkhazia never had the right to legitimate its secession. Furthermore, Abkhazia did not meet the basic requirements on protection of human and minority rights, especially because it does not guarantee a right of safe return to internally-displaced persons (idps)/refugees. Therefore, the report of the Mission considers that Abkhazia may be qualified only as a state-like entity but not as an independent state. 26

3 Constitutional Orders of Abkhazia and South Ossetia

The Constitution of the Republic of Abkhazia was adopted by the Abkhaz Supreme Council on 26 November 1994 and further amended by referendum on 3 October 1999. The current Constitution of South Ossetia was adopted by referendum on 8 April 2001, replacing the Constitution of 2 November 1993 and now effective in the version of November 2016.

The Constitutions of Abkhazia and South Ossetia bear considerable similarities to the 1993 Constitution of the Russian Federation and even draw inspiration from the 1978 Constitution of the Russian Soviet Socialistic Republic. The Constitution of South Ossetia consists of a preamble, nine chapters subdivided into 93 articles, as well as concluding and transitional provisions. The structure almost fully repeats the division of the Constitution of the Russian Federation, understandably leaving aside the chapter on the federal system. 27 To a lesser extent, the Constitution of Abkhazia also resembles the Constitution of the Russian Federation and consists of a Preamble, and 7 Chapters with 84 Articles. 28

Both Constitutions define the separation of legislative, executive and judicial powers as the basis for exercising state authority, 29 and mirror the Russian-style model of strong presidential republics wherein the president is head of state and of the executive. The Parliament of South Ossetia is the highest representative legislative body 30 and consists of 34 deputies elected for five-year terms. 31 Legislative authority in Abkhazia is exercised by the People’s Assembly – the Parliament of the Republic of Abkhazia 32 – which is a body consisting of 35 deputies elected for five-year terms. 33

The judicial systems of South Ossetia and Abkhazia consist of the Constitutional Court and general courts. 34 Besides, the Abkhaz judicial system includes a Court of Arbitration (equivalent to commercial courts). 35 It should be noted that the Constitutional Court of Abkhazia was formed in 2018. Before 30 April 2014, when the respective constitutional amendments were adopted, the Constitution of Abkhazia did not provide for a Constitutional Court and the function of constitutional review was exercised by the Supreme Court.

Notwithstanding evident similarities, there are some differences between the Constitutions of Abkhazia and South Ossetia and their resemblance to the Constitution of the Russian Federation. These differences can be explained by the historical and cultural particularities of these countries.

The first difference relates to higher age requirements for passive electoral rights in Abkhazia. In contrast to the Russian Constitution – where any citizen who has reached 21 years of age can be elected a member of the Russian Parliament (State Duma) 36 – the Constitution of Abkhazia establishes a higher age requirement of 25 years. 37 According to the Abkhaz Constitution, the minimum age requirement for presidential candidates is 35 years – that is, the same as in Russia. 38 However, in contrast to the Russian Constitution, the Constitution of Abkhazia sets a maximum age limit of 65 years for running for the office of president of Abkhazia. Besides, the president of Abkhazia’s term in office is five years, that is, more than the four-year term initially introduced by the 1993 Constitution of the Russian Federation but less than the current six-year term. These age limits correspond to the 1978 Constitution of the Russian Federation which was in force at the time of the collapse of the Soviet Union. 39 This brings us to conclude that the drafters of the Constitution of Abkhazia tended for some reason to prefer the “modernized” Soviet Russian Constitution of 1978 with its 1991 amendments to the Russian Constitution of 1993.

The second difference is that the Constitution of Abkhazia establishes an ethnic requirement for presidential candidates, by affirming that only ethnic Abkhaz can be elected to the office of president of Abkhazia. 40 This rule is in clear violation not only of the internationally recognized principle of non-discrimination as enshrined in all international and regional fundamental documents on human rights, representing a rule of customary international law with the status of a jus cogens 41 but also contradicts the anti-discrimination rules of the Constitution of Abkhazia. 42

The third difference between the Abkhaz Constitution and the Russian Constitution is the office of vice-president. 43 The constitutional system of the Russian Federation envisaged the office of the vice-president between 24 May 1991 and 25 December 1993 44 but was finally abandoned after the constitutional crisis of 1993. This can be regarded as one more indication for considering the 1978 Soviet Russian Constitution as the model for this part of the Constitution of Abkhazia.

The fourth difference is the existence of so-called “protected clauses” in the Abkhaz Constitution. These clauses declare that the Abkhaz Constitution cannot be amended or revised if the amendments or revision: involve the elimination or limitation of human rights and freedoms or loss of independence or violation of territorial integrity; are directed against the principle of popular power or separation of powers; or have the aim of changing the form of state ownership of land and other natural resources, as well as changing the status of the state language. 45

The fifth difference is that the Parliament of South Ossetia formally possesses stronger powers in controlling the executive than the State Duma of the Russian Federation. Under the Constitution of the Russian Federation, the State Duma may express a vote of no confidence in the government. However, the president of the Russian Federation may ignore the decision of the State Duma. But if there is a second vote of no confidence within three months, the president needs to either dismiss the government or dissolve the State Duma. 46 Under the Constitution of South Ossetia a parliamentary vote of no confidence adopted a second time takes effect even if the president of South Ossetia ignores the first no confidence vote. 47 Furthermore, there are differences in legal grounds for impeaching the president in the Constitutions of the Russian Federation and the Republic of South Ossetia. While the president of the Russian Federation may be impeached based on charges of high treason or of another grave crime, 48 impeachment of the president of South Ossetia can be triggered on the ground of any premeditated crime committed by the president. 49 In contrast to the Russian Constitution, the Constitution of South Ossetia identifies a list of principles on which the foreign policy of South Ossetia is to be based: a quest for comprehensive and just peace; mutual beneficial cooperation; entry into collective security systems; membership in international organizations and other associations. 50

The sixth difference is that the Constitution of South Ossetia contains a quite unique “integration clause” that allows South Ossetia to enter into unions with other states and to transfer the exercise of sovereign powers to the institutions of the union. 51 In our opinion, the rationale of the “integration clause” was to be used as a legal basis for South Ossetia’s accession into a Union State with the Russian Federation – the Commonwealth of the Russian Federation and Belarus 52 – which was the only supranational integration project at the time of adoption of the Constitution of South Ossetia. Furthermore, the Constitution also reflects the special link with the Republic of North Ossetia-Alania by providing that South Ossetia establishes relations with the above-mentioned constituent republic of the Russian Federation on the basis of ethnic, national, historical and territorial unity, socio-economic and cultural integration. 53 Nevertheless, nothing precludes application of the “integration clause” for South Ossetia to acquire membership in the Eurasian Economic Union. 54

Further evidence of the gradual integration of Abkhazia and South Ossetia into Russian political and legal spaces can be found in the provisions of their constitutions on state language and citizenship. In both entities the Russian language is recognized as the language of public institutions alongside Abkhazian and Ossetian. However, in Abkhazia only the Abkhaz language enjoys the status of the state language. In South Ossetia, the Russian language is also accorded the status of a state language. Besides, in contrast to the Constitution of Abkhazia, the Constitution of South Ossetia recognizes the Georgian language, alongside Ossetian and Russian, as a language of public institutions in areas with high concentrations of Georgians. 55

The Constitution of South Ossetia formalizes dual citizenship 56 for its residents. The Constitution of Abkhazia does not contain specific provisions on citizenship. However, the Law on Citizenship of the Republic of Abkhazia, 57 on the one hand, stipulates that a citizen of Abkhazia can acquire only citizenship of the Russian Federation. 58 On the other hand, ethnic Abkhaz abroad – irrespective of their citizenship – are given privileged status in obtaining citizenship. 59 Possession of a foreign citizenship by a citizen of Abkhazia cannot free them from the obligations stipulated by Abkhaz citizenship. 60

4 International Law in the Constitutions of South Ossetia and Abkhazia

The Constitution of South Ossetia replicates the same provisions of the 1993 Russian Constitution in defining the role of international law. In particular, the Constitution of South Ossetia stipulates that ‘[the Constitution] shall have supreme legal force and direct effect’ within its legal order. 61 Universally recognized principles and norms of international law as well as international agreements of South Ossetia should be an integral part of its national legal system. 62 However, in contrast to the Russian Constitution, the Constitution of South Ossetia does not contain provisions that declare international treaties as supreme over conflicting provisions of domestic laws. 63 This dilemma is further clarified by the South Ossetian Law on International Treaties, which replicates the same norms of the eponymous Russian law. In particular, the South Ossetian Law on International Treaties refers to the status of international treaties of the Republic of South Ossetia, together with the generally accepted principles and norms of international law, as being an integral part of the legal system of South Ossetia 64 and stipulates that if an international treaty of the Republic of South Ossetia establishes rules other than those stipulated in domestic law, then the rules of the international treaty will apply. 65 Furthermore, the provisions of duly ratified and officially published international treaties which do not require implementing national acts are directly effective within the South Ossetian legal order. 66

The Abkhaz Constitution expressly emphasizes that Abkhazia is a subject of international law. This is a rather unnecessary statement for an entity considering itself a state. 67 Norms defining the status of international law in the legal order of Abkhazia are entirely absent. However, detailed provisions on the legal status of international treaties can be found in the Abkhazian Law on International Treaties, according to which international treaties ratified by Abkhazia constitute an integral part of its legal system. 68 However, if ratified international treaties establish rules that differ from those stipulated by domestic laws, then the rules of the international treaty apply. 69 It should be emphasized here that these norms give primacy not to all international treaties but only to those that are duly ratified. 70 According to the Abkhazian Law on International Treaties, intergovernmental or interdepartmental treaties of the Republic of Abkhazia which are not subject to ratification do not contradict the laws of Abkhazia. 71 Thus, the legal order of Abkhazia makes the status of an international treaty subject to proof of whether it is ratified or not.

5 Responsibility for Ensuring Protection of Fundamental Human rights in Abkhazia and South Ossetia

Although the Constitutions of Abkhazia and South Ossetia commit themselves to internationally recognized principles of human rights, 72 practice does not correspond with these constitutional statements – as indeed we have seen above to be the case with even some constitutional provisions. 73 Severe and systematic violations of human rights by the de facto authorities in Abkhazia and South Ossetia, particularly with regard to ethnic Georgians, make the relevance of applying international human rights protection instruments apparent. 74 Most recently, on 22 March 2019, the United Nations Human Rights Council adopted a resolution in which it expressed serious concerns at various forms of reported discrimination against ethnic Georgians; violations of the right to life; deprivation of liberty; arbitrary detentions and kidnappings; infringements of the right to property; violations of the right to health; restrictions on education in one’s native language in both Georgian regions, not to mention the renewed practice of demolishing the ruins of houses belonging to internally displaced persons in the Tskhinvali region/South Ossetia, Georgia. 75 Furthermore, the recent reintroduction of the death penalty for drug dealing by Abkhazia in April 2019 76 can also be considered as a step backwards in terms of protection of human rights in this non-recognized entity.

At the beginning of the 2000s the Parliament of Georgia used to make standard declarations when ratifying or acceding to international conventions. Therein, Georgia declined its responsibility for treaty violations on the territories of Abkhazia and Tskhinvali region/South Ossetia until the full jurisdiction of Georgia is restored over these territories. Although no similar declarations had been made by Georgia at the time of acceding to the European Convention on Human Rights (echr) in 1999, several protocols to the echr were ratified with the above-mentioned declaration. 77 Nevertheless, according to well-established case law of the European Court of Human Rights (ECtHR), where Article 56 of the echr (relating to application of the echr in dependent territories of the parties) is not applicable, a party to the echr cannot limit the territorial scope of the echr even within non-controlled parts of their own territory. 78 In its Ilaşcu judgment 79 the ECtHR stated that parties to the echr exercise jurisdiction over their own non-controlled territory regarding their positive obligations on human rights protection under the echr. 80 Furthermore, the ECtHR confirmed that the Russian Federation (as de facto sponsor of the non-recognized entity, the Moldavian Transnistrian Republic (mtr)) enjoys jurisdiction of an extraterritorial nature and to that extent shares responsibility regarding human rights protection within non-controlled territories under the echr. 81 In the opinion of the ECtHR, Moldova ‘still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that are is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention’. 82 However, the ECtHR also considered that the Russian Federation had concurrent jurisdiction in the territory of the mrt because the mrt was ‘under [Russian] effective authority, or at the very least under [Russian] decisive influence’. 83

So far, the ECtHR has not yet ruled on cases related to protection of human rights in the breakaway regions of Georgia. However, three relevant inter-State applications 84 and a huge number of individual applications 85 are pending before the ECtHR.

Georgia’s Law on Occupied Territories adopted by the Parliament of Georgia on 23 October 2008 complies with the Ilaşcu judgment. This law designates Abkhazia and South Ossetia as “occupied territories” and declares that Georgia does not exercise its jurisdiction over those territories. At the same time this law confirms that the occupied territories are an integral part of Georgia, to which the legislation of Georgia applies. Consequently, any responsibility for violation of human rights in the occupied territories will be laid, according to Georgia’s Law on Occupied Territories, on the Russian Federation as the state carrying out military occupation. 86 There is a provision under which the Georgian executive is obliged to inform the appropriate international organizations about human rights violations in the occupied territories. 87 This can be considered as a measure of fulfilling the positive obligation to protect human rights as provided in the Ilaşcu judgment. 88

6 Historical Background and Current Status Quo of the Legal Systems of the Donetsk and Lugansk Peoples’ Republics

The emergence of the Donetsk Peoples Republic (dpr) and Lugansk Peoples 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 active support from so called “little green men” who, as was later admitted by Russian President Vladimir Putin, belonged to the Russian army. 89 However, there was one important difference 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, 90 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. 91 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 fourth 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, 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. 92 At a time of political turbulence following the “Maidan” revolution in Ukraine, the “Crimean Spring” 93 or the so-called “Crimean scenario” gained some degree of attractiveness for pro-Russian politicians and people predominantly from the Eastern regions of Ukraine. Pro-Russian protesters agitated by allegedly disguised Russian nationals 94 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. These People’s Councils proclaimed the 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, producing impressive figures of support for the statehood of the dpr/lpr among those who attended the election polls. 95 The results of the referendums were recognized neither by the Ukrainian government nor by the international community. 96 The final step in the creation of the dpr/lpr was the proclamation of the confederation of these state-like entities under the label of “Novorossiya” on 24 May 2014. 97 Following these events the People’s Councils of the dpr/lpr denounced the authority of the Ukrainian government and started forming their own executive and military structures. The Ukrainian government acknowledged de facto loss of control of the cities of Donetsk and Lugansk and parts of surrounding Ukrainian territories and proclaimed the Peoples’ Councils 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. 98 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). 99

Active military engagement between the Ukrainian army and military formations of the dpr/lpr and disguised Russian military units 100 lasted from 25 May till 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 the loss of lives of some 13000 Ukrainian, local and Russian military and paramilitary personnel including civilians and about 30000 wounded. 101 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. 102 About 13 000 casualties on both sides occurred between 2014 and 2018 including civilians. 103 The economy of Ukraine as a whole and what were once the most heavily industrial and prosperous regions of Ukraine-Donbas bore significant economic losses and a drastic fall in the standard of living. 104

As of today, the dpr and lpr have proclaimed themselves as “democratic, social states based on rule of law”. 105 However, they remain non-recognized states under international law since no UN Member State has recognized them. Hitherto, the dpr and lpr have received formal recognition only from the non-recognized Republics of South Ossetia and Abkhazia. The dpr and lpr have committed themselves to forming a federal union. 106 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 the dpr and lpr, 107 also providing humanitarian, economic and military assistance. Furthermore, Russia encourages immigration and integration by 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 in 2008. However, at that time, measures to simplify acquisition of Russian citizenship by residents of Abkhazia and South Ossetia were taken informally. 108

Ukraine considers the dpr and lpr as terrorist organizations and Russia as a “country-aggressor”. The territories of the dpr and lpr are proclaimed by Ukraine to be ‘temporarily occupied’, while Ukrainian nationals who reside in the ‘temporarily occupied territories’ are encouraged to move to Ukraine-controlled territory where they can obtain the status of ‘displaced persons’ and state social security payments. 109

Among international organizations, only the EU has explicitly expressed its own standing on the legal status of the dpr and lpr. The EU institutions have expressed consistent support for the territorial sovereignty of Ukraine 110 and label the dpr and lpr as the “Non-Government Controlled Areas of Eastern Ukraine” (ngca). 111 The EU and its Member States do not question the territorial sovereignty of Ukraine over the whole Donbas area (whether controlled or 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. 112 This means that residents of the dpr and lpr holding Ukrainian citizenship (and dpr/lpr or Russian citizenship) 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 yet defined. However, it goes without saying that 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.

7 Constitutional Orders of the Donetsk and Lugansk Peoples’ Republics

The Constitutions of the dpr and lpr were introduced to the populations of the separatist republics just days after the illegal referendums of 11 May 2014 on the independence of these entities. There is no information or evidence about the authorship or source of these documents. Neither expert communities nor residents of the dpr/lpr took part 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 “peoples’” republics and the statement that all power belongs to the people of these entities, on the one hand, and, on the other, the fact that these 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 10 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 public prosecutor’s office; local self-government; transitional provisions. However, 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 1993 Constitution of the Russian Federation. Most of the texts of the dpr and lpr Constitutions are “copy-paste” texts from the Constitution of the Russian Federation. 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 them are discussed in detail below.

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 the multi-party system and political diversity but also “ideological” diversity. 113 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 both) contain a 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 operating religious organizations (Jehovah’s Witnesses 114 ) on the territory of the dpr/lpr as will be shown below.

The third common feature is that the Constitutions of the dpr and lpr offer dual official languages, namely Russian and Ukrainian, 115 in contrast to the Russian and Ukrainian Constitutions, which formalize only one official language. 116 Recognition of two state official 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 declaratory in practice since the official language of the judiciary and trials is only Russian 117 and teaching within secondary and higher education is predominantly conducted in Russian whereas teaching in Ukrainian is not mandatory. 118

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 prohibiting extradition of own nationals (Articles 61–63 of the Constitution of the Russian Federation). However, recent practice shows that a significant number of residents of the dpr and lpr possess de facto three citizenships: Ukrainian citizenship, dpr/lpr citizenship, and Russian citizenship. The Russian Government has been consistently easing conditions for Ukrainian citizens from Eastern Ukraine to acquire Russian citizenship. 119 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 a fast track procedure without taking an obligatory test in Russian and having either a residence permit or a work permit on the territory of Russia. 120

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. The separation of powers recognizes the executive, legislative, and judicial powers. The heads (Glava in Russian, Holova in Ukrainian) of the dpr and lpr are the top executives and heads of state elected for five years with a maximum two terms in office. 121 The legislatures of the dpr and lpr are represented by the parliaments (People’s Councils), elected for five years and comprising 50 members in the lnr and 100 members in the dnr. 122 The judiciary is represented by the 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). 123 It is remarkable that only the judicial system of the dpr envisages establishment of a Constitutional Court, which so far is not in place. 124 In the meantime all potential constitutional conflicts still have to be decided only by the Supreme Courts of these entities. This situation, which is common not only to the dpr/lpr but also to Abkhazia (until 2016), implies that most post-Soviet non-recognized entities are reluctant to institutionalize constitutional review even though their constitutions envisage it. This can perhaps be explained by the need to avoid constitutional review of legal acts that 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 seizure of power took place in the lpr on 25 November 2017 when the city of Lugansk was suddenly occupied by unidentified armed “little 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 relevant provisions of the lpr Constitution, which envisaged that the Speaker of the People’s Council assumes office in the case of voluntary resignation by the Head of the lpr. Nevertheless, this provision of the lpr Constitution was hastily changed by the People’s Council to allow the lpr security service chief Leonid Pasechnik to be sworn in as acting Head of the lpr. 125 This means that the Constitution of the lpr was amended with the purpose of avoiding legitimate transfer of power but letting a specific personality 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 dpr Constitution, dpr Deputy Prime Minister Dmitriy Trapeznikov became acting Head of the dpr. 126 However, just a week later the dpr Prosecutor’s Office initiated a constitutional review and reversed 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 premise that the power of the people’s republic was vested in the dpr People’s Council. 127

8 International Law in the Constitutional Orders of the Donetsk and Lugansk Peoples’ Republics

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. These provisions – which appear in the Constitution of the Russian Federation on application of international treaties and principles of international law within the Russian legal order 128 – are absent in the Constitutions of the dpr and lpr. In our opinion, these 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 dpr/lpr). In particular, these laws clarify 129 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 as well as adoption of national implementation legal acts; 5) in the case of conflict between the dpr and lpr Constitutions and their international treaties, the former prevail; 130 6) if an international treaty requires change or amendment 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-style approach to the relation between international and national laws. 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 with or contradiction of the dpr/lpr Constitutions.

9 Responsibility for Ensuring Protection of Fundamental Human Rights in the Donetsk and Lugansk Peoples’ Republics

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 rights and freedoms of people in accordance with recognized principles and norms of international law. 131 In similar vein, these Constitutions entitle people to ask intergovernmental bodies and agencies for protection of human rights and freedoms if all national measures are exhausted. 132 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 who have voluntarily accepted so-called “dpr/lpr citizenships” and Russian citizenship, have no practical means to protect their fundamental human rights at the echr level in line with international standards. 133

The ECtHR has considered several cases related to protection of fundamental human rights by Ukrainian nationals who are residents of 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 applying the echr within all its territory. Well-established case law of the ECtHR relates to application of the echr in non-recognized and contested entities. 134 The most relevant ECtHR judgments for Ukraine are Ilaşcu, 135 Tsesar 136 and Khlebik. 137 To comply with the Ilaşcu judgment (discussed in detail above) the Ukrainian Parliament adopted the law “On the temporary occupied areas of Donetsk and Lugansk regions of Ukraine”, 138 in which Ukraine confirms its jurisdiction and commitments to ensure protection of human rights and access to the judiciary for residents of the “temporarily occupied” territories. However, the Russian Federation is vested with responsibility to compensate any material and non-material damage caused by 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 the 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 on 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 dnr Supreme Court strongly criticized the ECtHR for these decisions, accusing the Court of bias and ignoring the interests of residents of the dpr/lpr. 139 In the meantime, the ECtHR meets an accelerating flow of claims on behalf of Ukrainians resident in the dpr/lpr on the matter of violation of their human rights on the territories of these non-recognized entities caused by the ongoing conflict in Donbas. 140

Notwithstanding freedom of “ideological diversity” proclaimed as a core value in the dpr Constitution the judiciary of this non-recognized entity banned the activities of the internationally-based Christian denomination – 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 combating extremism and adopted almost mirror judgments in 2018 that led to a ban on activities by the Jehovah’s Witnesses on the territory of the dpr. 141

In 2017 the Russian Supreme Court banned the Church of Jehovah’s Witnesses in the Russian Federation, qualifying its activities as ‘extremist’ and confiscating 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”. 142 In this judgment the Russian Supreme Court reasoned 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 extremism 143 enable an interpretation of 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 Russia 144 not to mention penalizing their followers under Russian administrative and criminal laws. 145 Nevertheless, the members of the Jehovah’s Witnesses Church challenged the Russian Supreme Court findings and sought protection of their rights with the ECtHR. 146 About 40 cases regarding prosecution of Jehovah’s Witnesses members in Russia are under consideration by the ECtHR. 147

10 Concluding Remarks

In this article we have undertaken two tasks. First, we have sought to present a general overview of the historical background and foundations of constitutional systems of the non-recognized entities of Abkhazia, South Ossetia, and dpr/lpr. We have suggested that the non-recognized entities of Abkhazia, South Ossetia, and 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 Republic of Abkhazia, the Republic of South Ossetia, and dpr/lpr. The institutional focus of our study enables us to link the constitutional orders of Republics of Abkhazia and South Ossetia, dpr/lpr to the constitutional order of the Russian Federation. Our study shows that the latter were incorporated on a predominantly “copy/paste” approach into the constitutional orders of the dpr/lpr and to a certain extent into the constitutional orders of the Republics of Abkhazia and South Ossetia. Further, we have suggested that relations between international law and the legal systems of the non-recognized entities are not among priorities in the Constitutions of any of these unrecognized entities. However, their secondary legislation has established a mainly monist approach with sufficient 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 cannot be considered in line with international standards. On the one hand, residents of Abkhazia, South Ossetia, and dpr/lpr cannot rely on the judiciary of these non-recognized entities to ensure protection of their fundamental human rights and access to the ECtHR (capital punishment is allowed in the Republic of Abkhazia and dpr). On the other hand, ECtHR case law unequivocally suggests that (in our case) Georgia and Ukraine are responsible for ensuring access to their judiciaries and means of protection of fundamental human rights for those residents in their territory of the non-recognized entities. However, both ECtHR case law and the laws of Georgia and Ukraine in occupied territories assign full responsibility for violation of fundamental human rights to the Russian Federation which directly and indirectly supports the regimes in the non-recognized entities. Due to the complicated legal deadlock, residents of the non-recognized entities in the Republics of Abkhazia, South Ossetia and dpr/lpr are unsuccessful in ensuring adequate protection of their fundamental human rights in line with international and European standards.

Furthermore, our study shows that the constitutional systems of Abkhazia, South Ossetia, and dpr/lpr are products of ad hoc political situations at the moment of their birth. For example, the Constitution of South Ossetia contains an “integration clause” envisaging potentially joining the Russia-Belarus Union State project. The Constitutions of dpr and lpr omit the issue of dual/single citizenship thereby allowing residents of these territories both to acquire Russian citizenship and to maintain their Ukrainian citizenship.

Carried to its logical conclusion it can be argued that our study of the constitutional and legal orders of Abkhazia, South Ossetia, and the dpr/lpr suggests that these can be considered as classic façade constitutional structures, in that the constitutional and legal orders of Abkhazia, South Ossetia, and dpr/lpr perfectly fit the definition of façade constitutions by Giovanni Sartori. 148 In his opinion, façade constitutions appear like “true constitutions” but they are consistently disregarded by both state institutions and their nationals. As Giovanni Sartori shrewdly notes: ‘as far as the techniques of liberty and the rights of the power addresses are concerned, they are a dead letter’. 149 Our study argues that although the constitutions of the Republics of Abkhazia, South Ossetia, and dpr/lpr take the appearance of constitutional acts and even “copy/paste” provisions of different generations of the Constitution of the Russian Federation they are in reality “dead letter” legal documents. Moreover, establishing façade constitutional structures and institutions cannot legitimize the regimes of these non-recognized entities because they fail to ensure the legitimacy of their constitutional orders and transfer of power and do not provide adequate protection for the human rights of residents of these territories in line with international and European legal standards, as well demonstrated by the example of the ban on and persecution of the Christian denomination of the Jehovah’s Witnesses in dpr/lpr.

1

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

2

Ibid, at 861.

3

More on historic ethnic and cultural relations between Abkhazians and Ossetins and Georgians see Eva-Maria Auch, ‘Der Konflikt in Abchasien in historischer Perspektive’, 10 osze-Jahrbuch (2004), 237–252, in English available at <https://ifsh.de/file-CORE/documents/yearbook/english/04/Auch.pdf> and Dennis Sammut and Nikola Cvetkovski, ‘The Georgia-South Ossetia Conflict, Confidence Building Matters’, 6 vertic (1996), available at <http://www.vertic.org/media/Archived_Publications/Matters/Confidence_Building_Matters_No6.pdf>.

4

From then on, Georgian official documents refer to this region as “Samachablo”, or more recently, “Tskhinvali Region” (the territory of the former South Ossetia Autonomous Region). In international documents, such as resolutions of the General Assembly of the United Nations or acts of the Council of Europe and European Union, the name “Tskhinvali Region/South Ossetia” is used.

5

The All-Union referendum of 17 March, 1991 was the first and only national referendum in the history of the Soviet Union. Soviet citizens were asked whether or not they wanted to preserve the ussr as a renewed federation of equal sovereign republics. Although the majority of the population voted in favor, six out of fifteen republics of the Soviet Union (the Baltic republics, Georgia, Moldova and Armenia) refused to participate in the referendum.

6

As for the Abkhaz, they made up 17.8% of the population of Abkhazia (Census 1989. For an overview of the ethnic composition of Abkhazia see Tom Trier, Hedvig Lohm, and David Szakonyi, Under Siege: Inter-Ethnic Relations in Abkhazia (Hurst & Company, London 2010), at 74. The UN Security Council (between 1993–2008) and the UN General Assembly (since 2008) adopted 46 resolutions recognizing the right of return of all internally displaced persons and refugees in Georgia and their descendants, regardless of ethnicity, to their homes throughout that country, including Abkhazia and South Ossetia.

7

The Agreement of 24 June 1992 on the Principles of Settlement of the Georgian-Ossetian Conflict envisaged the following: a) a ceasefire; b) a joint Russian-Georgian-South Ossetian peacekeeping force; and c) talks involving Russia, Georgia, South Ossetia, and North Ossetia. The osce also joined the peace process in November 1992. In 1994 the Georgian and Abkhaz sides reached Agreement on a Ceasefire and Separation of Forces. Under this agreement and with subsequent endorsement by the UN Security Council, peacekeepers of the Commonwealth of Independent States were deployed in the conflict zone. Besides, the UN was present in Abkhazia with the Observer Mission in Georgia (unomig) established under Security Council Resolution 858 (1993) of 24 August 1993.

8

‘Extraordinary meeting of the EU General Affairs and External Relations Council’, 12453/08 (Presse 236), available at <http://eeas.europa.eu/archives/delegations/georgia/documents/eu_georgia/13august2008_en.pdf>.

9

Nicaragua (5 September 2008), Venezuela (10 September 2009), Nauru (15 December 2009) and Syria (29 May 2018). Tuvalu (18 September 2011) and Vanuatu (23 May 2011) also recognized Abkhazia but later withdraw their recognition (31 March 2014 and 12 July 2013, respectively).

10

The bilateral treaties between the Russian Federation and Abkhazia and between the Russian Federation and South Ossetia provide for special periods of their validity. According to its Art.23 the Russia-Abkhazia Basic Treaty is concluded for an initial period of 10 years and may be automatically renewed for the next 5 years if neither Party gives the other written denunciation notice at least 6 months before expiry of the Treaty. The ­Russia-South Ossetia Basic Treaty sets a stricter requirement. Under its Art.15(1), the initial term of 25 years may be automatically extended for the next 10 years if neither Party gives denunciation notice at least one year before expiry of the Treaty. In modern circumstances, it is difficult to imagine a situation where Abkhazia or South Ossetia would declare unilateral denunciation of these documents. However, adjustments to these agreements are theoretically possible.

11

Treaty between the Russian Federation and the Republic of South Ossetia on Friendship, Cooperation and Mutual Assistance, Collection of Legislation of the Russian Federation, 9 February 2009, N 6, 685, ‘Dogovor o druzhbe, sotrudnichestve i vzaimnoi pomoshi mezhdu Rossiiskoi federatsiei i Respublikoi Yuzhnaya Ossetiya’, Svod zakonov RF, 9 Fevralia 2009, N 6, at 685; Treaty between the Russian Federation and the Republic of Abkhazia on Friendship, Cooperation and Mutual Assistance, Collection of Legislation of the Russian Federation, 9 February 2009, N. 6, 686. ‘Dogovor o druzhbe, sotrudnichestve i vzaimnoi pomoshi mezhdu Rossiiskoi federatsiei i Respublikoi Abkhaziya’, Svod zakonov RF, 9 Fevralia 2009, N 6, 685.

12

Treaty between the Russian Federation and the Republic of Abkhazia on Alliance and Strategic Partnership, Collection of Legislation of the Russian Federation, 13 April 2015, N 15, 2201. ‘Dogovor mezhdu Rossiiskoi federatsiei i Respublikoi Abkhazia o soyuznichestve i stratetigechskom partnerstve”, Svod zakonov RF, 13 Aprelia 2015, N 15, 2201.

13

Treaty between the Russian Federation and the Republic of South Ossetia on Alliance and Integration, Collection of Legislation of the Russian Federation, 14 September 2015, N. 37, at 5126. ‘Dogovor mezhdu Rossiiskoi federatsiei i Respublikoi Yuzhnaya Ossetiya o soyuznichestve i integratsii’, Svod zakonov RF, 14 Sentiabria 2015, N 37, 5126.

14

Art. 23 Treaty on Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Republic of South Ossetia, Art.23 of the Treaty on Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Republic of ­Abkhazia of 2009.

15

Treaty between the Russian Federation and the Republic of Abkhazia on Alliance and Strategic Partnership of 2015, op.cit. note 12, Art.8.

16

Ibid., Art.17.

17

Ibid., Art.20.

18

Ibid., Art.18.

19

Ibid., Art.10.

20

Ibid., Art.3.

21

Ibid., Art.11.

22

Ibid., Art.5.

23

Paul Kalinichenko, ‘Legislative Approximation and Application of EU Law in Russia’, in Peter Van Elsuwege, Roman Petrov (eds.), Legislative Approximation and Application of EU Law in the Eastern Neighbourhood of the European Union: Towards a Common Regulatory Space? (Routledge, Abingdon/NY, 2014), 246–260, 255.

25

The report of the Independent International Fact-Finding Mission sees South Ossetia as an entity short of statehood due to the dominant influence of Russia on domestic policy in South Ossetia. See: Independent International Fact-Finding Mission on the Conflict in Georgia Report, vol 2, 134.

26

Whereas the term “state-like entity” is used by the authors as a substitute for the term “de facto regime”, see: Independent International Fact-Finding Mission on the Conflict in Georgia Report, vol 2, 128.

27

The Constitution of the Republic of South Ossetia is structured in the following way: 1. Fundamentals of the Constitutional System of the Republic of South Ossetia; 2. Rights, Freedoms, and Duties of the Human Being and Citizen; 3. President of the Republic of South Ossetia; 4. Parliament of the Republic of South Ossetia; 5. Government of the Republic of South Ossetia; 6. Judiciary of the Republic of South Ossetia; 7. Office of the Prosecutor of the Republic of South Ossetia; 8. Local State Administration and ­Self-Government; 9. Constitutional Amendments and Revision of the Constitution of the Republic of South Ossetia; Concluding and Transitional Provisions. The Constitution of the Republic of South Ossetia is available at <http://www.parliamentrso.org/node/13>.

28

The Constitution of the Republic of Abkhazia is structured as follows: 1. Fundamentals of the Constitutional System; 2. Rights and freedoms of the human being and citizen; 3. Legislative power; 4. Executive power; 5. Judicial power and Office of the Prosecutor; 6. Local Self-Government; 7. Constitutional Amendments and Revision of the Constitution. Constitution of the Republic of Abkhazia is available at <http://presidentofabkhazia.org/doc/const/>.

29

Art.7 Constitution of the Republic of Abkhazia, 26 November 1994, No 187-s; Art.5.1 of the Constitution of the Republic of South Ossetia.

30

Constitution of the Republic of South Ossetia, op.cit. note 27, Art.56.1.

31

Ibid., Art.57.1.

32

Constitution of the Republic of Abkhazia, op.cit. note 28, Art.36.

33

Ibid., Art.37.

34

Constitution of the Republic of South Ossetia, op.cit. note 27, Art.77.2.

35

Constitution of the Republic of Abkhazia, op.cit. note 28, Arts.68–74.

36

Art.97 Constitution of Russian Federation of 1993, available at <http://www.constitution.ru/en/10003000-01.htm>.

37

Constitution of the Republic of Abkhazia, op.cit. note 28, Art.37.

38

Constitution of the Russian Federation, op.cit. note 36, Art.81.2.

39

Arts.121–122 Constitution of the Russian Federation of 1978. The 1978 Constitution of the Russian Federation in its amended form outlived the collapse of the Soviet Union and was in effect until 1993 when a new Constitution of the Russian Federation was adopted, available at <http://www.rusconstitution.ru/term/98>.

40

Constitution of the Republic of Abkhazia, op.cit. note 28, Art.49. Abkhaz legislation follows Soviet practice and provides for the inclusion of information about the ethnic affiliation of individuals in their civil status acts. This starts with the birth certificate entailing the ethnicity of parents. The relevant information included in the passport is then based on the data from the birth certificate. Someone who has parents of different ethnicities may choose between the two. It is also allowed to change ethnic affiliation in certain cases defined by law. For details see the Law ‘On Civil Status Acts of the Republic of Abkhazia’, 31 December 2008, No 2276-c-iv (Zakon ‘Ob Aktakh Grazhdanstvogo Sostoyaniya Respubliki Abkhaziya’, 31 dekabrya 2008 goda, No 2276-c-iv), available at <http://parlamentra.org/rus/regulatory/zakonodatelstvo/>.

41

E.g., Arts 2 and 7 of the Universal Declaration of Human Rights (udhr), Arts.2 and 26 of the International Covenant on Civil and Political Rights, Art.14 of the European Convention on Human Rights (echr), Arts.1 and 2 of Protocol No.12 to the echr; Art.21 of the European Charter of Fundamental Freedoms. On the status of the principle of non-­discrimination in international law see F.F. Martin, et al, International Human Rights and Humanitarian Law (cup, New York, 2006).

42

The Constitution of the Republic of Abkhazia itself emphasizes that the rights and freedoms proclaimed in the udhr shall be recognized and guaranteed by the Republic of Abkhazia (Art.11). Furthermore, it concretizes that all are equal before the law and the court without distinction of race, nationality, sex, language, origin, property status or position, domicile, religion, beliefs, ideology or other considerations (Art.12).

43

Constitution of the Republic of Abkhazia, op.cit. note 28, Art.54.

44

Constitution of the Russian Federation of 1978, op.cit. note 39, Art.121.7.

45

Constitution of the Republic of Abkhazia, op.cit. note 28, Art.81.

46

Constitution of the Russian Federation of 1993, op.cit. note 36, Art.117.

47

Constitution of the Republic of South Ossetia, op.cit. note 27, Art.7 6.

48

Constitution the Russian Federation of 1993, op.cit. note 36, Art.93.1.

49

Constitution of the Republic of South Ossetia, op.cit. note 27, Art.72.1.

50

Ibid., Art.11.1.

51

Ibid., Art.10, which reads: ‘ The Republic of South Ossetia can enter into union with other countries and transfer the exercise of sovereign powers to the institutions of the union”.

52

Abkhazia and South Ossetia have been granted observer status at the Parliamentary Assembly of the Union State between Russia and Belarus in 2008.

53

Constitution of the Republic of South Ossetia, op.cit. note 27, Art.8. This provision repeats Art.16 of the Constitution of the Republic of North Ossetia-Alania which refers, for its part, to relations with South Ossetia.

54

However, it should be noted here that the perspective of membership in any of the above-mentioned integration projects would depend on whether other members were prepared to recognize the statehood of the Republic of South Ossetia.

55

Constitution of the Republic of Abkhazia, op.cit. note 28, Art.6; Constitution of the Republic of South Ossetia, op.cit. note 27, Art.4.

56

Constitution of the Republic of South Ossetia, op.cit. note 27, Art.16.3.

57

The Law “On Citizenship of the Republic of Abkhazia”, 8 November 2005, No 1168-s-xiv (‘Zakon “O grazhdanstve Respubliki Abkhaziya’, 8 noyabrya 2005 goda, No 1168-s-xiv), available at <http://presidentofabkhazia.org/doc/const/?PAGEN_1=6>.

58

Dual citizenship with regard only to citizenship of the Russian Federation was introduced in 2013 by passing an amendment to the Law ‘On Citizenship of the Republic of Abkhazia’. This was used as an additional legal basis for a mass depassportization of ethnic Georgians, the majority of whom held Georgian citizenship as well.

59

Law ‘On Citizenship of the Republic of Abkhazia’, 8 November 2005, op.cit. note 57, Art.5. At the same time, the same article deprives ethnic non-Abkhaz from the right to obtain citizenship if they had not resided in Abkhazia permanently for a period of 5 years up to the declaration of independence of Abkhazia on 12 October 1999. In practice this concerns the whole ethnic Georgian population, most of whom were displaced by the war and were only officially allowed to return in 1999.

60

Law “On Citizenship of the Republic of Abkhazia”, 8 November 2005, op.cit. note 57, Art.6. In practice, the issue of passports of the Russian Federation to the inhabitants of Abkhazia and South Ossetia, which started in the early 2000s, resulted in most of the (non-Georgian ethnic) population in these entities holding Russian passports. This status quo enabled Russia to assert responsibility for protecting Russian citizens living in Abkhazia and South Ossetia.

61

Constitution of the Republic of South Ossetia, op.cit. note 27, Art.2.1.

62

Ibid., Art.2.5.

63

According to Art.15.4 of the Constitution of the Russian Federation: ‘If an international agreement of the Russian Federation establishes rules which differ from those stipulated by law, then the rules of the international agreement shall be applied.’

64

Art.4 1 of the Law ‘On International Treaties of Republic of South Ossetia’, 25 December 2007, No 89 (Zakon ‘O mezhdunarodnykh dogovorah Respubliki Yuzhnaya Ossetiya’, 25 dekabrya 2007 goda, No 89), available at <http://www.parliamentrso.org/legislation?page=23>.

65

Ibid., Art.4.2.

66

Ibid., Art.4.3.

67

Constitution of the Republic of Abkhazia, op.cit. note 28, Art.3.

68

Art.5.1 of the Law on International Treaties of the Republic of Abkhazia, 7 November 2007, No 1872-s-iv (Zakon ‘O mezhdunarodnykh dogovorah Respubliki Abkhaziya’, 7 ­noyabrya 2007 goda, No 1872-s-iv), available at <http://presidentofabkhazia.org/doc/const/?PAGEN_1=6>.

69

Ibid., Art.5.1.

70

Treaties which are subject to ratification are listed in Art.16 of the Law on International Treaties of Republic of Abkhazia (e.g. treaties whose implementation requires an amendment to existing – or adoption of new – laws, and those establishing rules other than those stipulated by law or whose subject is the fundamental rights and freedoms of the person and the citizen).

71

Law on International Treaties of the Republic of Abkhazia, op.cit. note 68, Art.5.4.

72

Constitution of the Republic of Abkhazia, op.cit. note 28, Arts.11–12; Constitution of the Republic of South Ossetia, op.cit. note 27, Art.18.

73

See ethnic requirement for presidential candidates in Abkhazia.

74

See, e.g., Freedom House annual report ‘Freedom in the World 2018’, available at <https://freedomhouse.org/report/freedom-world/2018/abkhazia> (as for Abkhazia) and at <https://freedomhouse.org/report/freedom-world/2018/south-ossetia> (as for South Ossetia). For the situation with protection of human rights in Abkhazia more generally see Thomas Hammarberg and Magdalena Grono, ‘Human Rights in Abkhazia Today’, Palme Institute, July 2017, available at <https://www.palmecenter.se/wp-content/uploads/2017/07/Human-Rights-in-Abkhazia-Today-report-by-Thomas-Hammarberg-and-Magdalena-Grono.pdf>; for discriminatory aspects of legislation and examples of practice of a discriminatory nature towards non-Abkhaz, see Tom Trier, Hedvig Lohm, and David Szakonyi, n 6, 74.

75

Resolution A/hrc/40/L.24 of the United Nations Human Rights Council, available at <https://undocs.org/A/HRC/40/L.24>.

77

According to the Declaration made by Georgia to the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms: ‘Georgia declares, that due to the existing situation in Abkhazia and Tskhinvali region, Georgian authorities are unable to undertake commitments concerning the respect and protection of the provisions of the Convention and its Additional Protocols on these territories. Georgia therefore declines its responsibility for violations of the provisions of the Protocol by the organs of self-proclaimed illegal forces on the territories of Abkhazia and Tskhinvali region until the possibility of realization of the full jurisdiction of Georgia is restored over these territories.’; and as to Georgia’s declaration made upon ratification of Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms: ‘Georgia declines its responsibility for the violations of the provisions of the Protocol on the territories of Abkhazia and Tskhinvali region until the full jurisdiction of Georgia is restored over these territories.’; and in its statement made in the ratification instrument of Protocol No 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning abolition of the death penalty in all circumstances: “Georgia declares that until the full jurisdiction of Georgia is restored on the territories of Abkhazia and Tskhinvali Region, it cannot be held liable for the violations on these territories of the provisions of Protocol No. 13.”

78

Loizidou v. Turkey, App.no.15318/89, Judgment of 23 March 1995; Assanidze v. Georgia, App.no.71503/01, Judgment of 8 April 2004, 140.

79

Ilaşcu et al v Moldova and Russia, App. No. 48787/99, Judgment of 8 July 2004. This ruling, according to which jurisdiction may be limited but still persists where a state is prevented from exercising its authority in pArt.of its territory, differs from the earlier case-law of the ECtHR. In particular, in its judgments in Bankovic ́ et al v Belgium et al and Assanidze v Georgia the ECtHR took the position that if the state concerned no longer controls pArt.of its territory, then it no longer has jurisdiction over that area (Bankovic ́ et al v Belgium et al [GC], App No 52207/99, Decision of 12 December 2001, paras. 59–63; Assanidze v Georgia, App. No. 71503/01, Judgment of 8 April 2004, paras. 133, 134). Although this development in the approach of the ECtHR has been criticised for dogmatic and practical reasons, effectively this does not impact the extraterritorial obligation of the Russian Federation under the echr. For a critique of the Ilaşcu judgment see Marko Milanovic and Tatjana Papic, ‘The Applicability of the echr in Contested Territories’, iclq (2018), 779–800.

80

Ilaşcu et al v Moldova and Russia, App.no.48787/99, Judgment of 8 July 2004, 139–143.

81

Ibid. 314–316, 392.

82

Ibid. 333–334.

83

Ibid., 392.

84

Georgia v Russia (App.no.38263/08) lodged on 11 August 2008 relates to the 2008 armed conflict between Georgia and the Russian Federation and its aftermath; Georgia v Russia (App.no. 61186/09) lodged on 16 November 2009 concerns detention of four Georgian minors by the de facto authorities of South Ossetia; and Georgia v. Russia (App.no. 39611/18) lodged on 22 August 2018 concerns deterioration of the human rights situation.

85

Over 3300 individual applications against Georgia have been lodged by Russian nationals affected by the 2008 armed conflict. About half of them have been rejected by the ECtHR as inadmissible. Besides, some 20 applications have been lodged against both Georgia and the Russian Federation in which the applicants (Georgian nationals) and over 180 applications have been lodged by applicants from Georgia against the Russian Federation.

86

Art.7.1 of the Law of Georgia on Occupied Territories, 23 October 2008, No 431, available at <https://matsne.gov.ge/en/document/view/19132?publication=7>. In August 2018, Georgia filed a case against Russia at the ECtHR for ‘wide-scale practices of harassment, ­detention, assault and murder on the Russian-occupied territories of Georgia’. Source: <http://www.justice.gov.ge/News/Detail?newsId=7765>.

87

Ibid., Art.7.2.

88

Ilaşcu et al v Moldova and Russia, op.cit. note 80.

89

Answering the question about the origin of the “little green men” in Crimea, President 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 by Vladimir Putin in documentary by Andrey Kondrashov ‘Crimea: The Way Home’, available at <https://www.youtube.com/watch?v=t42-71RpRgI>.

90

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

91

On 6 March 2014 the Supreme Council of Crimea voted for accession to the Russian Federation and put this question in a 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>.

92

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 der 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. Cristian Marxsen ‘The Crimea Crisis from an International Law Perspective’, 2 Kyiv-Mohyla Law and Politics Journal (2016), 13–36.

93

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”.

94

For example, the notorious paramilitary leader of the dpr, a Russian national Arsen Pavlov nicknamed “Motorola”, took an active part in the illegal seizure of Ukrainian official buildings in Kharkiv and Donbass; detailed information and video footage is available at <https://en.wikipedia.org/wiki/Arsen_Pavlov>.

95

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>.

96

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>.

97

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

98

Edict of the Acting President of Ukraine ‘About the Decision of 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 roky №405/2014. Law of Ukraine ‘About temporary measures durating the anti-terror operation”, 02 September 2014, №1669-vii. Zakon Ukrainy ‘Pro tymchasovy zakhody na period provedenia antiterroristichnoy operatsii’, 2 veresniya 2014 roku, №1669-vii.

99

Art.15 echr allows the government of the Member States, in exceptional circumstances, to derogate, in a temporary and supervised manner, from their right to secure certain rights of their nationals under the echr. To date, only eight parties to the echr have formally derogated under 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>. See Benedikt Harzl and Oleksii Plotnikov, ‘Ukraine’s Derogation From the European Convention on Human Rights’, in Stephan Wittich and Gerhard Loibl (eds.), 22(ix-xii) Austrian Review of International and European Law 2017 (2019), 29–65.

100

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>.

101

Report on the human rights situation in Ukraine, 2019, Office of the United Nations High Commissioner for Human Rights, available at <https://www.ohchr.org/Documents/Countries/UA/ReportUkraine16Feb-15May2019_EN.pdf>.

102

According to the conclusions of the Dutch Safety Board’s accident investigation, the aircraft was shot down by 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 the report that the “Buk” missile was fired from a rebel-controlled area of Eastern Ukraine that was transported from 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.

103

Office of the UN High Commissioner for Human Rights, ‘Report on the human rights situation in Ukraine in 2018’, available at https://www.ohchr.org/Documents/Countries/UA/24thReportUkraineAugust_November2018_EN.pdf.

104

In experts’ view, as a result of the conflict in Donbass the economy of Ukraine lost about 20% of its gdp in the period 2014–18, 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>.

105

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

106

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

107

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 the Donetsk and Lugansk regions of Ukraine’, 18 February 2017, №74. Ukraz Presidenta RF ‘O priznanii v RF dokumentov i registratsionnykh znakov transportnykh sreds.tv, vydanykh grazhdanam Ukrainy i litsam bez grazhdanstva, postoyanno prozhivaushim na territorii otdelnykh rayonov Donetskoy i Luganskoy oblastey Ukrainy’, 18 fevralya 2017 goda, №74.

108

See letter of 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 Abkhaziya’, 10 yanvarya 1995, N 01-13/251. Letter of 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 vnutrennikh respublikanskikh pasportakh grazhdan Yuzhnoy Osetii’, 05 fevralya 2007, N 04-16/3764.

109

Law of Ukraine ‘On particularities of state policy on ensuring state sovereignty of Ukraine in the 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.

110

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

111

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

112

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.

113

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/>.

114

Prohibited within the territory of the Russian Federation.

115

Constitutions of the dpr and lpr, op.cit. note 113, Art.10.

116

It must be noted that subjects of the Russian Federation have a right to formalize 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, and state institutions of the Republics they shall be used together with the state language of the Russian Federation”.

117

This concerns only the dpr (Art.10 Law of the dnr “On the 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 lnr ‘On the Judicial System of the Lugansk People’s Republic’, 28 August 2018, No 260-ii).

118

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>.

119

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. Ukaz Presidenta RF ‘O priznanii v RF dokumentov i registratsionnykh znakov transportnykh sreds.tv, vydanykh grazhdanam Ukrainy i litsam bez grazhdanstva, postoyanno prozhivaushim na territorii otdelnykh rayonov Donetskoy i Luganskoy oblastey Ukrainy’, 18 fevralya 2017 goda, №74.

120

Federal Law of the Russian Federation ‘On amending the Federal Law “On citizenship of the Russian Federation”’, 27 December 2018, №544-FZ. Federalniy Zakon RF ‘O vnesenii izmeneniy v Federalniy Zakon “O grazhdanstve RF”’, 27 dekabria 2018 goda, №544-FZ. Edict of 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 gumanitarnikh tseliakh kategoriy litz imeushih prave obratitsia s zayavleniamy o prieme v grazhdanstvo FR v uprshennom poryadke’, 24 aprelia 2019 goda, №183. These legal acts ease the requirement for residents of the dpr and lpr seeking to obtain Russian citizenship to have an official residence (registration) in Russian territory. 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 by the Russian authorities of Russian citizenship of applications to a 3-month term.By the end of 2019 about 200,000 dpr’s and lpr’s residents acquired the Russian citizenship, available at <https://novorosinform.org/800999>.

121

Constitutions of the dpr and lpr, op.cit. note 113, Art.57(2).

122

Ibid., Art.63(2).

123

Art.4(2), 5(2) Law of the dpr ‘On the judicial system of dpr’, 10 September 2018, №241-ihc (Zakon dnr ‘O sydebnoy systeme dnr’, 10 sentiabria 2018 goda, №241-ihc) and Law of the lpr ‘On the judicial system of the lpr’, 30 April 2015, №18-ii (Zakon lnr ‘O sydebnoy systeme lnr’, 30 aprelia 2015 goda, №18-ii).

124

Ibid., Art.4(2).

125

See Art.62 of the lpr Constitution which was added with the following provision on 25 November 2017 ‘In case of early termination of office of the Head of the lpr and in case the Head of the lpr cannot fulfil his duties, the speaker of the People’s Council temporarily takes up the office’ was added with the provision ‘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 Head of the lpr’.

126

In September 2019 the former prime minister of the dpr, Dmitriy Trapeznikov, was appointed as mayor of the Russian city of Elista in the Republic of Kalmykia (North Caucasus region). This appointment caused unprecedented public protests in the city of Elista mainly due to the notorious record of Dmitriy Trapeznikov (a Russian national since April 2019) in the dpr. More information is available at <https://www.bbc.com/russian/features-50138550>.

127

Art.62 of the Constitution of the dpr at the time of the assassination stated that ‘in case the Head of the dpr cannot fulfil his duties either the deputy prime minister (in case the Head of the dpr does not occupy this office) temporarily occupies the office of the 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.

128

Constitution of the Russian Federation 1993, op.cit. note 36, Art.15(4).

129

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-ihc) and Art.4 Law of the lpr ‘On international treaties’, 08 October 2018, No 274-ii (Zakon lnr ‘O mezhdunarodnykh dogovorakh’, 08 oktiabria 2018 goda, №274-ii). 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.’

130

Ibid., Art.21.

131

Constitutions of the dpr and lpr, op.cit. note 113, Art.12(1).

132

Ibid., Art.39(3).

133

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, 02 April 2015, available at <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/070/53/PDF/G1507053.pdf?OpenElement>.

134

Marko Milanović and Tatjana Papić, ‘The Applicability of the echr in Contested Territories’, 67(4) iclq 67, (2018), 779–800.

135

Ilaşcu et al v Moldova and Russia, op.cit. note 80.

136

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.

137

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

138

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.

139

In particular, the Supreme Court of the dpr accused the ECtHR of “political bias of the ECtHR and hypocritical segregation of claimants in classes in order to serve the interest 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>.

140

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

141

Judgment of the Supreme Court of dpr, 22 August 2018, № 20/100/4/2018; Judgment of the Supreme Court of dpr, 26 September 2018, № 20/100/5/2018, available at <https://supcourt-dpr.su/srpe>.

142

Judgment of the Supreme Court of the Russian Federation, 20 April 2017, № AКPI17-238.

143

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’.

144

E.g., in 2017 the 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), Yan Shenkman, ‘Pochemy Fodor Chistyakov pokinul Rossiy. Premiera pesni grupy “Nol” i zayavlenie iee lidera ob otyezde iz RF’, Novaya Gazeta No. 83 (2 August 2017), available at <https://www.novayagazeta.ru/articles/2017/07/31/73296-pochemu-fedor-chistyakov-pokinul-rossiyu>.

145

By 2019 the Russian government opened about 120 criminal pre-trial procedures against followers of the Jehovah’s Witnesses’ in Russia, more information available at <https://pl.wikipedia.org/wiki/%C5%9Awiadkowie_Jehowy_w_Rosji>.

146

ECtHR, Administrative Centre of Jehovah’s Witnesses in Russia and Kalin v. Russia, App.no. 10188/17, 1 December 2017.

147

‘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>.

148

Giovanni Sartori, op.cit. note 1, 861.

149

Ibid., 861.

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