Published on 23 October 2023

FIRST SECTION

Application no. 55855/18 Ukraine against Russia lodged on 28 November 2018 communicated on 3 October 2023

SUBJECT MATTER OF THE CASE

The application concerns a naval incident which took place on 25 November 2018 at the Kerch Strait, which connects the Black Sea to the Sea of Azov, and the allegedly unlawful seizure and detention of the Ukrainian crew members by the Russian authorities. The applicant Government invokes Articles 2, 3, 5, 6 § 3 and 38 of the Convention

QUESTIONS TO THE PARTIES

1. Do the applicant Government’s complaints fall within the Article 1 jurisdiction of the respondent State ( Ukraine v. Russia ( re Crimea) ([GC] (dec.), nos. 20958/14 and 38334/18, §303, 16 December 2020 and Ukraine and the Netherlands v. Russia ([GC] (dec.), nos. 20958/14, 43800/14 and 42410/15, §§ 547-575, 30 November 2022)? In the affirmative, what is the ground of the said “jurisdiction”?

2. Is there prima facie evidence of the administrative practices alleged by the applicant Government to give rise to violations of the Convention? The parties are invited to discuss whether there is sufficiently substantiated prima facie evidence as to the existence of both the “repetition of acts” and “official tolerance” (see, Ukraine and the Netherlands v. Russia (cited above, §§ 825 ‑ 827).

3. Bearing in mind the answers to be given to the question above, does the rule on exhaustion of domestic remedies apply in the present case (see Georgia v. Russia (II) ((dec.), no. 38263/08, §§ 84-86, 13 December 2011)?

In the affirmative, a) did effective domestic remedies exist; and if so, b) what are/were they; and c) have they been exhausted?

In particular, (i) are there examples of persons who have tried to have recourse to such remedies before the judicial authorities of the respondent State? (ii) were investigations carried out with respect to the alleged violations?

4. Do the matters complained in the application submitted by the applicant Government give rise to violations of Article 2 of the Convention? In this context:

a) Was it absolutely necessary for the purposes of Article 2 § 2 to resort to a use of force which threatened the life of the Ukrainian servicemen ( Soare and Others v. Romania , no. 24329/02, §§ 126-130, 22 February 2011)?

b) What investigative steps have been taken by the Russian authorities into the events of the present case? More specifically, having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), was the investigation in the present case by the Russian authorities in breach of Article 2 of the Convention?

5. Do the matters complained by the applicant Government give rise to violations of Article 3 of the Convention? In particular:

a) Bearing in mind the answers to be given to the question 4 a) above, has there been a violation of Article 3 on account of the use of force in the present case?

b) Did the conditions of the Ukrainian servicemen’s detention amount to inhuman or degrading treatment?

c) Taking into account the Ukrainian servicemen’s injuries, have the authorities met their obligation to ensure that their health and well-being were adequately secured by, among other things, providing them with requisite medical assistance, as required by Article 3 of the Convention?

The respondent Government are invited to submit a detailed account of all medical assistance provided to Ukrainian servicemen.

The applicant Government are invited to submit a detailed account of the medical condition of the captured Ukrainian servicemen.

6. Were the Ukrainian servicemen deprived of their liberty in breach of Article 5 of the Convention? In particular:

a) What was the legal ground of their deprivation of liberty?

b) Having regard to the terms of the Third Geneva Convention, was their detention in accordance with the law, as required by Article 5 of the Convention?

7. Were the captured Ukrainian servicemen criminally prosecuted by Russian authorities? If so, what was the outcome of the proceedings? In particular, were they convicted as a result of a final judicial decision? If yes, were they afforded legal assistance, within the meaning of Article 6 § 3 (c) of the Convention? More specifically, did the alleged failure to provide access of the Ukrainian consul to captive Ukrainian servicemen constitute a violation of the right to legal assistance under this provision?

8. Has there been a violation of Article 38 on account of the failure of the respondent Government to engage constructively with the proceedings for the examination of the case (see Ukraine and the Netherlands v. Russia ([GC] (dec.), nos. 20958/14, 43800/14 and 42410/15, §§ 456-459, 30 November 2022)?

The parties are invited to include relevant submissions as to their views on evidence collected by international bodies and non-governmental organisations which might be pertinent to the assessment of the legal issues identified. They are further asked to provide copies in their original language and in English or French translation of all relevant evidence, on which they wish to rely or which is, or might be said to be, wholly or in large part within the exclusive knowledge or access of their authorities.