International legal grounds for access to justice for indigenous peoples in Crimea

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Head of the Department of Administrative and Criminal Law at Odessa National Maritime Academy

International Legal Grounds for Access to Justice for Indigenous Peoples in Crimea

Babin Borys,

Doctor of Law

Ukraine, Odessa

Abstract

Article researches the situation, connected with providing the access to justice for indigenous peoples that have the historic native land in the Crimea. Politic and legal processes that let this problem to become actual in conditions of interstate conflict are watched at. Legal and organizational mechanisms of realizing the individual and collective rights of indigenous peoples in Crimea are determined at. The positions of interested states are compared at, grounds of international organizations' and global structures' approaches are lighted in. Components of right of indigenous peoples on justice are detailed; their realization for indigenous peoples of Crimea becomes too actual now. Author uses the formal legal, comparative and hermeneutic approaches for analysis the normative basis in a complex; political science, sociologic and statistic methods are used also. Problem of access for indigenous peoples to justice in conditions of the interstate conflict in researched in a world practice in first time. Author develops the propositions addressed to UN connecting to the providing of the right of indigenous peoples to justice in the Crimea. He proved the duty of the international monitoring of those processes. Role of the UN Declaration on the Rights of Indigenous Peoples is determined; the duty for both states to implement it for providing access to justice in Crimea is proved at. Materials of article were used by author in his report to the UN Expert Mechanisms on the Rights of Indigenous Peoples on its 7th session, 2014.

Keywords: native peoples, collective rights, right to justice, judicial system, international standards, Crimea, Crimean Tartars, obligations of states, the UNO, an international conflict

Article researches the situation, connected with providing the access to justice for indigenous peoples that have the historic native land in the Crimea. Politic and legal processes that let this problem to become actual in conditions of interstate conflict are watched at. Legal and organizational mechanisms of realizing the individual and collective rights of indigenous peoples in Crimea are determined at. The positions of interested states are compared at, grounds of international organizations' and global structures' approaches are lighted in. Components of right of indigenous peoples on justice are detailed; their realization for indigenous peoples of Crimea becomes too actual now. Author uses the formal legal, comparative and hermeneutic approaches for analysis the normative basis in a complex; political science, sociologic and statistic methods are used also. Problem of access for indigenous peoples to justice in conditions of the interstate conflict in researched in a world practice in first time. Author develops the propositions addressed to UN connecting to the providing of the right of indigenous peoples to justice in the Crimea. He proved the duty of the international monitoring of those processes. Role of the UN Declaration on the Rights of Indigenous Peoples is determined; the duty for both states to implement it for providing access to justice in Crimea is proved at. Materials of article were used by author in his report to the UN Expert Mechanisms on the Rights of Indigenous Peoples on its 7th session, 2014.

Ключевые слова: коренные народы, коллективные права, право на правосудие, судебная система, международные стандарты, Крым, крымские татары, обязанности государств, ООН, межгосударственный конфликт

Problem point. Problem of access to justice for indigenous peoples, recognized in modern UN acts, such as UN Human Rights Council decision on September 23, 2013 (A/HRC/24/L.22) and UN Expert Mechanism's study on the access to justice in the promotion and protection of the rights of indigenous peoples on 30 July, 2013 (A/HRC/24/50), is actual for indigenous peoples residing in Crimean peninsula. As it is known since the beginning of February of 2014, the conflict between two member-states founders of the UN, takes place in the Eastern European region.

I.a., as it was stated on UN Permanent Forum on Indigenous Issues, now Ukraine has lost de-facto control over Crimea but has the support of the majority of UN Member States, which recognize the territorial integrity and sovereignty of Ukraine. Russian Federation (RF) exercises a de-facto political and judicial control over Crimea although this is not recognized de-jure by the most of the members of international community. Situation of Crimea several times was considered by the highest UN bodies such as the General Assembly and the Security Council.

Against this background the world's attention there loses sight of the fact that Crimea in its geographic frames (including ARC, city of Sevastopol and part of Herson region) is not just an ordinary territory of interstate conflict but the native land and territory of three indigenous peoples - Crimean Tatars, Karays (Karaites) and Krymchaks. These three peoples are rather small and very vulnerable to on-going threats and military activities carried out on their territory. They have also been dispossessed from their natural rights by all parties of the conflict. Indigenous Peoples of Crimea were not the initiators or the sponsors of that disagreement but became instead victims of that scramble against their own will. So the problems of their right on justice is actual; we may analyze it using the UN documents, Ukrainian and Russian legislation and other information taken from official sources (such as official web-cites ets.)

Background. Aspects of right of indigenous peoples on justice are low-lighted in modern scientific literature. World scientific authorities watched this problem first of all via specification of indigenous land claims, out of problems of indigenous representatives defending their rights in national of international courts. Such position may be found in works of Alfredsson Gudmundur, S. Allen, S. James Anaya, Bennett Gordon, C.P. Cohen, Wolfgang S. Heinz, Benedic Kingsbury, J.R. Martinez-Cobo etc. In works of post-soviet researchers, such as D.M. Kitzenko, V.A. Kryazhkov aspects of implementing the modern international standards are not researched.

Task of research. The goal of research is to determine the possible mechanisms of realization the right of indigenous peoples to justice in Crimea. Realizing this goal we must watch the Ukrainian and Russian legislation devoted to Crimean problem, to the statute of indigenous peoples and to the right to justice in whole. More, we must compare this legislation and international law standards and mechanisms and prepare the coherent recommendations.

Research process. Crimean Tatars as the indigenous nation of Crimea, deported from peninsula by illegal acts of Soviet government in 1944 and particularly repatriated to Crimea in 1989-2010, have approximately 200000 representatives in Ukraine, first of all in Crimea; more than 3000 of Crimean Tatars leaved Crimea, controlled by Russia, and resettled to the continental Ukrainian regions during March-June 2014. Karaites and Krymchaks are non-numerous peoples that have now less than 500 representatives in Ukraine, most of all live in Crimea; now but we know facts of emigration of some activists of those non-numerous peoples to the continental Ukrainian regions from the Crimea during March-June 2014.

Ukrainian law and right to justice for indigenous peoples in Crimea. In independent Ukraine in period of 1991-2014 those indigenous peoples had some problems with realization their right on justice, but those violations was caused by common problems of development the new post-soviet state. Also, if Krymchaks and Karaites were recognized in Ukraine as non-numerous indigenous peoples in 1992, Crimean Tatars were recognized as indigenous peoples only in March of 2014. Such non-recognition was caused by escalation of separatist policy in Crimea in 1990-1998 by Russian immigrants that were resettled in Crimea by Soviet government after the Second World War.

In 1990-2014 Ukraine was trying to preserve the inter-ethnic conflict in Crimea, so Crimean Tatars used the right for justice only in individual form as citizens of Ukraine. Such situation caused practical impossibility for the indigenous land claims, restitution claims and diffamation claims. The consolidated position of the state and self-government bodies, judicial institutions, courts and even the Ombudsman of Ukraine was that the property taken at the time of deportation might not be returned due to the lack of Ukrainian laws on the restitution (or giving back) or compensation of that property; the vast majority of such object and lands were privatized by Russian immigrants in 1992-1998.

At the same time Ukraine de-facto recognized the politic statute of Crimean Tatars and gave to them some preferences not for their indigenous origin but as for the victims of Soviet deportation. Such preferences were individual; they grounded on sublegal acts of programmatic and financial character that did not let for Crimean Tatars claim to court for recognition their indigenous rights.

Agreement on Aspects Connected with Restoration of Rights for Deported Persons, National Minorities and Peoples, adopted in Bishkek by some post-Soviet states 9 of October, 1992 did not foresee the right of deportees to claim on national of international level.

National acts devoted to deportees such as Ukrainian Government's Decrees № 1952 of 17 December, 2003; № 626 of 13 of May, 2004 etc. did not set the clear procedure of court arbitration for deportees. Law of Ukraine "On the Restoration of Rights for Persons, Deported on a National Basis" № 1872IV, adopted by Ukrainian Parliament 24 of June, 2004, provided for Crimean Tatars the court procedure of establishing the fact of deportation (articles 5, 6) and possibility of appeal in case of refusing for recognition the deportee statute. But this law had got veto from President of Ukraine and special justice mechanisms for Crimean Tatars did not appeared.

Anyway, Constitution of Ukraine guarantees for everybody the right to challenge in court the decisions, actions or inactivity of state authorities, local government officials and officers; also it guarantees the right for legal appeal for the protection of the rights and freedoms to relevant international judicial institutions or to the appropriate authorities international organizations, member or participant by Ukraine (article 55).

Ukrainian practice of appeals to the European Court on Human Rights shows that most important problems in area of justice, including problems for representatives of indigenous peoples, were:

- the violation of right on reasonable time to consider the case,

- non enforcement the court decision of financial character,

- tortures and ill-treatment in law enforcement bodies during criminal process.

Ukrainian court system was modernizing during 1996-2010. Justice in Ukraine is administered exclusively by the courts; the delegation of the functions of the courts, and also the appropriation of these functions by other bodies or officials, is not permitted. The jurisdiction of the courts extends to all legal relations that arise in the Ukraine.

The people directly participate in the administration of justice through people's assessors and jurors. In Ukraine, the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialization. The respective high courts are the highest judicial bodies of specialized courts; courts of appeal and local courts operate in accordance with the law; the creation of extraordinary and special courts is not permitted. Justice is administered by professional judges and, in cases determined by law, people's assessors and jurors (articles 124, 125, 127 of Constitution of Ukraine). Court system and justice relation is regulated now by the all-national laws of Ukraine, such as: "On the Court System and Statute of Judges", 2010, Criminal Process Code, 2012, Civil Process Code, 2004, Code of Administrative Justice, 2005 and Code of Administrative Delicts, 1984.

On the beginning of the 2014 24 local courts in Crimea operated (district, town and town-district courts) in ARC, 4 district courts were in Sevastopol, also the Appeal Court of ARC, Appeal Court of Sevastopol, Administrative Court of ARC, Administrative Court of Sevastopol, Commerce Court of ARC, Commerce Court of Sevastopol, Appeal Administrative Court (Sevastopol) and Appeal Commerce Court (Simferopol) existed.

After Russian military and politic actions in Crimea Ukraine adopted the Law № 1207_VII "On the Protection of Rights and Freedoms of Citizens and on Legal Regime for the Temporarily Occupied Territory of Ukraine" on April 15, 2014. The preamble of this Law, concerning the basis for public policy for temporarily occupied territory of Ukraine, determined duty of defense and full implementation of national, cultural, social and political rights of citizens of Ukraine, "including indigenous peoples".

This legal configuration suggests that the rights of indigenous peoples of Ukraine in Crimea is covered by the provisions of this Law № 1207-VII, under which Ukraine is taking all necessary measures "to guarantee the rights and freedoms guaranteed by the Constitution and laws of Ukraine, by international treaties, to all citizens of Ukraine residing occupied territory". "In the occupied territories liability for violations of human rights, which are guaranteed by the Constitution and laws of Ukraine, relies on Russia as on the state-occupier in accordance with the norms and principles of international law", as this law says. UN Declaration of the Rights of Indigenous Peoples, of course, can be regarded as a collection of relevant "norms and principles" of international law applied by Ukraine to implement the requirements of the Law № 1207-VII.

Article 12 of the Law of Ukraine № 1207-VII changed venue of cases looked by local courts located in the ARC and Sevastopol city, "due to the inability to deliver justice in the temporarily occupied territories by such local courts". Crimean civil cases and criminal proceedings for Crimean cases are handled by local courts in Kyiv, determined by the Court of Appeal of Kyiv; Crimean administrative cases with local courts jurisdiction are considered by local courts of Kyiv, defined by Kyiv Appeal Administrative Court.

We analyzed practice of such transmission of cases and found 8 cases (May-June 2014) of administrative appeals given in Crimea to local courts by representatives of Crimean Tatars and, after beginning the Russian intervention, Crimean Tatars as plaintiffs asks for transfer the hearing to Holosiyivsky district court in Kiev according to demands of Law № 1207-VII (cases № 101/3138/13-а; 2701/2658/12; 2а-2981/2011; 122/4394/2012; 2а-1825/10/0105; 111/1828/13-а; 2а-1134/09/0115; 2а-1237/09/0115). Defendants in those appeals given by Crimean Tatars are the local bodies situated in Crimea (executive committee of city council, local State Pension Fund offices, local police offices), so it proves that some Crimean Tatar still recognize the Ukrainian jurisdiction and are ready to realize its right for justice according to the Law № 1207_VII. Alas we no have no statistics on civil cases that are much more popular, among others, for Crimean Tatar to have the picture of implementation the rules of Law № 1207_VII

During the Russian military and politic actions Verkhovna Rada (Parliament) of Ukraine made official Statement on the Guarantee of the Rights of the Crimean Tatar People in the Ukrainian State, approved by the Resolution № 1140-VII of March 20, 2014. According to the Statement Ukraine guarantees the preservation and development of ethnic, cultural, linguistic and religious identity of the Crimean Tatar People as an indigenous people.

Ukraine guarantees the protection and implementation of the inherent right of self-determination of the Crimean Tatar People in the sovereign and independent Ukrainian State. Ukraine recognized the Mejlis of the Crimean Tatar People, as the executive body of Kurultay of the Crimean Tatar People, and as the highest representative body of the Crimean Tatars. By this Statement Parliament of Ukraine instructed the Cabinet of Ministers of Ukraine to submit immediately the draft laws and other legal acts of Ukraine that define and confirms the status of the Indigenous People of Ukraine. Development of relevant projects might be done in consultation with the Mejlis of the Crimean Tatar People, in close cooperation with the UN, the OSCE, the Council of Europe in accordance with international law and standards of human rights, indigenous peoples and ethnic minorities.

In article 4 of Statement № 1140-VII Verkhovna Rada of Ukraine declared its support for the UN Declaration on the Rights of Indigenous Peoples, 2007; during the 13th session of UN Permanent Forum on Indigenous Issues on 23 of May, 2014 Permanent representative of Ukraine in UN declared the will of Ukrainian government to support the Declaration officially.

Alas, special Ukrainian law on statute of the Indigenous People of Ukraine in conditions of permanent Russian war activities and threat of intervention to the continental Ukraine by Russia is not still adopted. Anyway project of such law (№ 4501) was registered in Parliament of Ukraine by representatives of pro-President parliament fraction in one day with the project of the Statement № 1140-VII ; project was adopted in a first reading only. In relation to the right of indigenous peoples to justice we may point on articles 9, 26, 27, 34, 38 of this project of Law.

According to those norms Ukraine are going to give to the indigenous peoples effective mechanisms for legal protection in relation to:

- any action which has the aim or effect of depriving integrity as distinct peoples, or of their cultural values or ethnic origin;

- any action which has the aim or effect of depriving historic lands, territories of their compact residence or resources;

- the forced displacement of the population in any manner, which has the purpose or result of a violation or undermining any of their rights;

- forced assimilation or integration in any form;

- promotion in any manner that is intended to promote or incite racial, ethnic or religious hatred or hatred directed against them.

Also project foresees the right of indigenous peoples to legal recognition and protection of their historic lands, territories and resources in accordance with the Constitution and laws of Ukraine. There is foreseen the right of indigenous peoples of Ukraine and persons belonging to them to the fair, independent, impartial, open and transparent process of official recognition and confirmation of rights to their historic lands, territories and compact living resources, including those which they have traditionally owned, occupied or used.

In this project Ukraine is going to declare the right of indigenous peoples to promote, develop and maintain their institutional structures and their particular customs, traditions, procedures, practices, and in cases where they exist, legal systems or customs, in accordance with international standards of human rights and the Constitution and laws of Ukraine. Also project № 4501 says that indigenous peoples have the right to access and quick decisions under fair procedures for the settlement of conflicts and disputes with states or other parties, as well as to effective remedies in the event of any infringements of their individual and collective rights.

At the same time Ukraine adopted the Law № 1223-VII "On the Restoration of the Rights of Persons Deported on National Grounds". This act does not contain the term "indigenous peoples"; but there are mentioned about both deported peoples and the Crimean Tatars; tat the same time the Law № 1223-VII is the universal document covering all criminal ethnic deportations made by Soviet state (deportation of Ukrainians etc.). According to the article 9 of this Law, state decision of refuse in granting to the Crimean Tatar person the status of deportees in way of non-giving the license may be appealed in court. Article 7 of this law of Ukraine defines the procedure and terms of compensation to the deportees.

Among others, buildings and other property seized as a result of the deportation must be returned to the deportees or to their kind in nature if it is possible (if the house is not occupied, and if the property is preserved). In the case of absence of such possibility the applicant is reimbursed by the cost of buildings and property. Applications for compensation and return of property must be filed not later than three years from the date the person status of deportees (those norms comes into force from January 1, 2015).

Russian law and right to justice for indigenous peoples in Crimea. From other side RF considers Crimea as its own territory. Supreme Council of ARC adopted on 17 of March, 2014 the Resolution "On the Independence of Crimea" № 1745-6/14. According to this act, from the date of its entry into force, Ukrainian legislation, adopted after February 21, 2014, is not applicable in the territory of the new so called "Republic of Crimea" (hereinafter - RC), solutions of Verkhovna Rada of Ukraine and of other state bodies of Ukraine adopted from pointed date are not implemented. But other Ukrainian legislation, except the indicated (i.a. noticed process laws and laws about court system), shall apply on the territory of the RC till appearing the relevant regulations of the RC.

Article 4 of this act demands to the Ukrainian courts in the RC to continue own activities "for protecting the rights and freedoms of citizens and economic operators", and act their decisions concerning the application of the legislation of Ukraine that shall not contradict this Resolution. Resolution proclaimed the appropriate appellate courts in the territories of the RC and Sevastopol as the highest judicial bodies in the Crimea.

Before declaring "independence" Supreme Council of ARC adopted at March, 11 2014 special Resolution "On the Guarantees of the Restoration of Rights Of Crimean Tatar People and its Integration into Crimean Society", which ensured 20 % representation of Crimean Tatars in all Crimean state and local self-government bodies. Those provisions had to be included into the text of new Crimean Constitution. In fact even at the process of the drafting of that constitution thіs promises was officially discarded as those ones that "undermine" the equality of the citizens.

So called "Treaty" between the RF and the RC on acceptance RC in the RF and on the formation in the RF new constituent entities, signed in Moscow on March 18, 2014, declares the principles of Russian jurisdiction in Crimea. Articles 6 and 9 of this act (with undetermined legal role and statute) say that since the adoption the RC to the RF till January 1, 2015 the "transitional period" exists. During this period the issues of integration of the "new entities of the RF" into the legal system of the RF and into the system of state authorities of the RF might be resolved.

RF entered into force own legislative and other regulatory legal acts in the RC and Sevastopol "since their adoption of the RF". RF does not apply normative legal acts of the ARC, of the RC and Sevastopol, contrary to the Constitution of the RF. Other such acts are applied by the RF in the territories of the RC and Sevastopol "till the end of the transition period or until the adoption of the relevant normative legal act of the RF and (or) adoption of the regional regulatory legal act.

This act says nothing about the specific conditions of court activities and all justice system in Crimea during the "transitional period". More, its article 5 says that Ukrainian citizens and stateless persons permanently residing in the day of March 18, 2014 in the RC or in the territory of Sevastopol, are recognized as citizens of the RF, with the exception for persons who declares their wish to keep their existing citizenship and (or) citizenship of their minor children during one months after the pointed day (till April 18, 2014).

No other act of RF or of RC regulated this issue more, so representatives of the indigenous peoples in Crimea have neither possibility to choose their citizenship on fair conditions, nor chance to use the justice mechanisms to prevent such forced providing the Russian citizenship for them and members of their families. Such situation touched Crimean Tatar employed in area of justice (judges, procurators, investigators, advocates etc.).

After it President of RF adopted the Decree № 268 on April 21, 2014 "On the Measures for the Rehabilitation of the Armenian, Bulgarian, Greek, Crimean Tatar and German Peoples and the State Support of their Recovery and Development". As experts say, Decree obviously ignores Crimean Tatars as an indigenous people and equalizes them with the settlers from European nations implanted in Crimea at the XIX century as a part of policy of displacement of Crimean Tatars; de jure this is the repudiation of the indigenous rights of Crimean Tatars. Independent researchers tell us about content of the Decree that is rather poor and very far from the norms and principles established by international law and good practice for indigenous peoples.

As we may see even from the title of this act, it shows the official position of RF government about own possibility to "rehabilitate" the Greek or German People without any awareness of the position of Armenians, Bulgarians, Greeks and Germans in Crimea as minority not whole people, and of the existing the national states of such peoples in Europe. Anyway Decree № 268 contains the declaration thesis only, but there is no any norm that may be used as a legal ground by the Crimean Tatars defending their rights in Russian courts.

The same position is in the project of law of the RC № 1520/30-10 "On Some Guarantees of the Rights of Peoples Deported without Court Order on a National Basis in 1941-1944 from the Crimean Autonomous Soviet Socialist Republic", adopted by the Supreme Council (SC) of ARC (s.c. "State Council" of RC) for the first reading on June 4, 2014. Proposed project does not talk even about the illegality of deportation, no any rights of deported Crimean Tatars are given in it; project refers only on some "measures of social protection" for repatriates such as compensation of railroad ticket to Crimea. Project № 1520/30-10 does not foresee any court procedure or other form of access to justice for Crimean Tatars.

Issues of court system and justice procedures are declared in act named as "Constitution of Republic of Crimea", adopted by the SC of Crimea on 11 of April, 2014 (articles 39, 40, 86); those position are taken from the Constitution of RF, 1993. According to those declarations everyone has guaranteed judicial protection of his rights and freedoms; decisions and actions (or inaction) of state authorities, local authorities, public associations and officials may be appealed in court. Everyone has right "in accordance with international treaties of the RF", to appeal the international bodies for the protection of the rights and freedoms. No one may be deprived of the right to have hearing in his case court and the judge, to whose jurisdiction it falls under the law.

According to this act justice in the RC is made by the courts only - by federal courts and magistrates. Competence, formation and operation of the federal courts is determined by the legislation of the RF not of the RC. Status, authority, order and guarantee the performance of judges determined by federal law, and in case of magistrates and judicial districts - both by the law of RF and of the RC. Any acts realizing those provisions of this act weren't yet adopted.

Anyway court system of RF establishing by RF in Crimea has some differences from Ukrainian - there is no administrative courts in Russia - so claims against illegal actions of state authorities must be given to local common courts; Russia have no institute of investigation judge that guarantees less process rights to the participants of criminal process. In other way RF have special military courts cancelled in Ukraine in 2001-2010 as violating the principle of independent court.

RF created own court system in Crimea on June 23, 2014, when four federal laws were adopted (№ 10-ФКЗ, № 154-ФЗ, № 155-ФЗ and № 156-ФЗ). According to them RF created 24 local district and town courts in RC and 4 district courts in Sevastopol - all an basis of former Ukrainian zones for common local courts. Also RF created s.c. "Supreme Court of Republic of Crimea", "Sevastopol City Court" (appellate link), "Arbitration Court of Republic of Crimea", "Arbitration Court of Sevastopol City" and "21^st Appellate Arbitration Court" in Simferopol; Crimean and Sevastopol garrison military courts were created. Process of forming those bodies de-facto is established till July 1, 2015.

According to the Russian law № 156-ФЗ former Ukrainian judges of Crimean courts, i.a. Crimean Tatars, got the "preemptive right" for positions of judges in courts of RF in the Crimea with conditions of acquisition of Russian citizenship and compliance requirements for candidates for the post of judge. Nobody did not explain how the former Ukrainian judges during one year may prepare own qualification in other national legislative system (as usual judge is learning in high schools and post-graduate programs more that 6 years as in RF so in Ukraine).

International law and right to justice for indigenous peoples in Crimea. Such steps of RF for legitimating the annexation of Crimea were not recognized by the world community; more, those steps were recognized as dangerous for human rights and for rights of indigenous peoples. So in Resolution 68/262 "Territorial integrity of Ukraine" adopted by the UN General Assembly on 27 March 2014 were noted that "the referendum held in the ARC and the city of Sevastopol on 16 March 2014 having no validity, cannot form the basis for any alteration of the status of the ARC or of the city of Sevastopol"; UN General Assembly called upon all states, international organizations and specialized agencies "not to recognize any alteration of the status of the ARC and the city of Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status".

In Resolution "Clear, gross and uncorrected violations of Helsinki Principles by the Russian Federation" adopted by OSCE Parliamentary Assembly on 1 July 2014 OSCE points the fact of Russian "military aggression" in Ukraine and views the 16 March 2014 referendum in Crimea as an "illegitimate and illegal act, the results of which have no validity whatsoever"; OSCE also called upon all participating States to refuse to recognize the forced annexation of Crimea by the RF.

In Reports of the Office of the UN High Commissioner for Human Rights on the human rights situation in Ukraine (April 15 and June 15, 2014) UN officials expressed the view that "Crimean Tatars as indigenous people boycotted the "referendum" on March 16, 2014" ; also UN pointed on cases of discrimination and violence against the Crimean Tatars as an indigenous people.

In those Reports UN recommended to the fact Crimean authorities to protect the rights of minorities and indigenous peoples in Crimea, in particular - the rights of the Crimean Tatars. The report emphasizes the double role of the international community and the UN in the protection of human rights, including the rights of indigenous peoples; Report dated by April 15, recommends to ensure the inclusive equal participation in public affairs and political life for indigenous peoples and to develop mechanisms to enhance such participation (also in the area of justice). Report of 15 June, 2014 contains the similar requirements for full and inclusive participation of Crimean Tatars as an indigenous people, and even included a special unit "Rights of indigenous peoples".

Article 7 of Resolution adopted by OSCE Parliamentary Assembly on July 1, 2014 notes the particular vulnerability of Crimean Tatars and "other minority groups", along with those Ukrainian citizens opposed to the actions undertaken or supported by the RF, to attacks, harassment and intimidation by Russian-supported separatist forces. The Caucus of Indigenous Peoples attending the 13th session of Permanent Forum on Indigenous Issues evaluated that the legal manipulations with the intention to escape the recognition and observation of indigenous rights of Crimean Tatars, Karaites and Krymchaks in Crimea makes them vulnerable for any oppression from dominating population and from Russian government controlling that territory; in its resolution Caucus pointed that Russian policy in Crimea is very dangerous and is not being in compliance with the international standards concerning the rights of indigenous peoples one.

Indigenous Peoples recommended to the UN Permanent Forum to propose to the Special Reporter on the Rights of Indigenous Peoples to visit Crimea in order to collect information and data related to the situation of the indigenous peoples, to include a delegation of indigenous peoples of Crimea into the mandatory participants of the forthcoming World Conference of Indigenous Peoples 2014.

During Permanent Forum session (May 11, 2014) Indigenous Peoples also proposed to Russia:

- to find a solution to their dispute by exceptionally peaceful and diplomatic measures, to stop any military activities carried out in Ukraine and take as highest priority the physical safety of indigenous peoples,

- to ensure the full participation of indigenous peoples of Crimea in accordance with the concept of free, prior, informed consent in the settlement process of such conflict,

- to hold back from the threat and persecution of indigenous organizations and activists defending the rights of indigenous peoples in Crimea by the methods of non-violence and public discussions,

- to support officially the UN Declaration on the Rights of Indigenous Peoples and to use it as a basis for their policy and legislative acts concerning indigenous peoples in Crimea, this shall be worked out as soon as possible,

- to recognize the rights of persons belonging to indigenous peoples of Crimea to preserve their citizenship, or to change it or to have dual citizenship on their own choice, to come and to stay in Crimea form the areas of their exile without any negative consequences for their civil, political, economic, social or cultural rights in Crimea.

We must watch legal grounds in international law that may be an argument in discussion about realization the right of indigenous peoples in Crimea to justice.

Article 40 of UN Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in its resolution 61/295 of 13 September 2007, points that indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with states or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights. Today according to official speeches of central and local authorities, Russia refuses to recognize indigenous statute for Crimean Tatars and refuses to support the provisions of the Declaration; Ukraine, as it were mentioned before, recognized legal role of the Declaration and indigenous statute for Crimean Tatars by Resolution № 1140-VII of March 20, 2014.

UN Expert Mechanism points that this Declaration is an instrument for achieving justice and is an important foundational framework for the realization of the rights of indigenous peoples. Its implementation can support the attainment of access to justice for indigenous peoples; so implementation of Declaration by Ukraine and searching ways for adoption Declaration by Russia will help the indigenous peoples in Crimea to realize own right on justice.

ILO Convention № 169 (1989) Concerning Indigenous and Tribal Peoples in Independent Countries, foresees the right of such peoples to have access to legal proceedings for the protection of their human rights (art. 12) and to retain their own customs and institutions (art. 8). The Convention further requires that adequate procedures be established to resolve land claims (art. 14). Despite of some proposition of Ukrainian politics to look possibility of ratification Convention № 169 today there is no real perspective of its ratification neither by Ukraine nor by Russia.

We must analyze key provisions of Expert Mechanism's study on the access to justice in the promotion and protection of the rights of indigenous peoples (30 July 2013, A/HRC/24/50).

Study A/HRC/24/50points in article 5 that in conformity with the right to self-determination, indigenous peoples must have access to justice externally, from states, and internally, through indigenous customary and traditional systems; indigenous peoples must have access to justice both individually and collectively (Russia now do not give possibility to collective access for indigenous peoples in Crimea).

Article 6 of Study A/HRC/24/50 points that particular dimension of access to justice relates to overcoming long-standing historical injustices and discrimination, including in relation to colonization and dispossession of indigenous peoples' lands, territories and resources; injustices of the past that remain unremedied constitute a continuing affront to the dignity of the group. In a case with indigenous peoples in Crimea we see that processes of injustices and discrimination, including in relation to colonization and dispossession of indigenous peoples' lands, territories and resources in Crimea are not the history, but a modern reality. It is hard to wait from local Crimean authorities open, transparent and free access for justice for Crimean Tatars in such situation.

Study A/HRC/24/50 also emphases the duty of providing the access to international mechanisms of justice for the indigenous peoples. As both Russia and Ukraine recognized the competence of UN Human Rights Committee, of UN Committee on the Elimination of Racial Discrimination and of European Court for Human Rights, we may expect appeals from representatives of indigenous peoples to those bodies, with certain coherent grounds as on Ukrainian, so on Russian national legal process cases. At the same time neither RF nor Ukraine are not parts of Optional Protocol to the Covenant on Economic, Social and Culture Rights so indigenous peoples in Crimea have no possibility to appeal to the UN Committee on Economic, Social and Cultural Rights.

In article 22 of its Study A/HRC/24/50 Expert Mechanism is aware of long-standing complaints from indigenous peoples that they lack standing to bring complaints relating to loss of sovereignty and self-determination under international law or to enforce treaties between indigenous peoples and states, for example standing as states before the International Court of Justice. Such complaints now may be given by representative bodies of Crimean Tatars to the European Court for Human Rights but the results of such proceeding likely will not be implemented by RF.

Articles 24, 32 of Study A/HRC/24/50 point that the pre-emptory norm of non-discrimination, a fundamental pillar of international human rights law, requires that indigenous peoples have access to justice on an equal basis to the general population; that at the national and regional levels, strategic litigation, education, outreach and advocacy can help to expand access to justice and protections for the rights of indigenous peoples. The biggest problem for realization of those provisions is in absence of local layers and advocates qualified in Russian legislation in Crimea.

Article 42 of Study A/HRC/24/50 points that where indigenous peoples are victims of crimes, in some cases, the response is inadequate, including as a result of insufficient state support for appropriate policing or where there is a lack of impartiality on the part of law enforcement agencies; access to justice can be blocked where law enforcement is not available or its officers fail to act appropriately, including by not recording complaints or undertaking genuine investigations. In this context we may mention one of the most terrible incidents was a case of Reshat Ametov, who was kidnapped, outrageously tortured and ferociously murdered. This case is not unique, it got widely into media through presence the original video that proves the fact of kidnapping and trough the body of Ametov was found accidently. Many other representatives of Crimean Tatar People disappeared during last months in Crimea also; in any of such cases Russian police, military and paramilitary authorities did not find or name anybody responsible for those illegal actions.

So we must mention the articles 78, 81, 82 of Study A/HRC/24/50 telling us about the updated set of principles promotes a broad concept of justice based on the right to know (also known as the right to the truth), the right to justice, the right to reparation and guarantees of non-recurrence. I.a. the right to the truth provides that all persons have the right to know the truth about past events concerning the commission of heinous crimes and about the circumstances and reasons that led to the perpetration of those crimes. In particular, victims and their families have the right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims' fate.

Such problems appear in conditions of transitional justice processes, that is actual for conflict situation such as aggression, occupation and deportation. Processes and mechanisms associated with transitional justice are concerned with how societies emerging from conflict or repressive rule address the legacy of violations of human rights. We may agree with demands of articles 83, 84, 96 of Study A/HRC/24/50 and constant that they cover the modern Crimean situation.

According to those principles states must ensure that those responsible for serious crimes under international law are prosecuted, tried and duly punished. The right to reparation implies a state duty to make reparations and the possibility for the victim to seek redress from the perpetrator; the right to reparation includes measures of restitution, compensation, rehabilitation and satisfaction.

At the same time, as this UN act mentions, transitional justice consists of both judicial and non-judicial processes and mechanisms, including prosecutions, truth-seeking, reparations programs, institutional reform, or an appropriate combination thereof. These mechanisms are interlinked and one does not replace another. While the present study focuses largely on truth commissions, other relevant measures to guarantee the rights to truth and justice include international criminal tribunals, national criminal proceedings, commissions of inquiry, official archives and historical projects.

We may claim that in conditions of politic regime created in Crimea, including war propaganda, legalizing paramilitary troops and reducing civil rights and freedoms - proposed by UN relevant measures to guarantee the rights to truth and justice will not be implemented in Crimea without the aid of UN bodies.

Summary

So we may point such conclusions. Problem of restriction or denial of rights the indigenous peoples in Crimea is complex and is connected with Ukrainian-Russian conflict and with modern statute of Crimea. Crimean Tatars, Karaites and Krymchaks as hostages of modern situation have objective problems with realization their right to justice using both (or any from) national Ukrainian and Russian court systems, advocacy and law enforcement mechanisms.

To solve this problem we may advice such measures.

UN and OSCE must help Ukraine to implement the mechanisms of Declaration on the Rights of Indigenous Peoples, 2007 i.a. provide assistance in preparing national legislation on indigenous peoples and technical aid for its effective realization in courts and legal aid system.

UN and OSCE must notify Russia that it must realize demands of Declaration, 2007 in Crimea for Crimean Tatars, Karaites and Krymchaks despite Russian wish and possibility to implement or not the Declaration, 2007 for indigenous peoples residing in territories that were under Russian jurisdiction before March, 2014 (in Caucasus, Siberia etc.), they may help Russia to implement the Declaration in the Russian system of justice.

UN and OSCE must help to the European Court on Human Rights in implementing the Declaration, 2007 for adjudication in any case connected with the rights and interests of Crimean Tatars, Karaites and Krymchaks regardless of using by appellants Ukrainian or Russian national jurisdiction also as in cases when it is impossible now to use any of those jurisdictions or possible to use both of them. crimea justice politic legal

UN and OSCE Expert mechanisms must monitor the situation with:

- realization the Crimean Tatar's claims in Ukrainian courts according to the Ukrainian laws № 1223-VII, 2014 and № 1207-VII, 2014;

- policy of Ukrainian and Russian authorities concerning the former Ukrainian judges, layers and advocates that are representatives of indigenous peoples in Crimea;

- practice of justice in Russian courts in Crimea in cases where the rights of representatives of indigenous peoples in Crimea are violated.

Bibliography

1. Human rights and indigenous peoples: Resolution of UN Human Rights Council, 23 September, 2013, A/HRC/24/L.22 ; URL: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/24/L.22

2. Expert Mechanism's study on on the access to justice in the promotion and protection of the rights of indigenous peoples, 30 July 2013 A/HRC/24/50 ; URL:http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G13/160/21/PDF/G1316021.pdf?OpenElement

3. About Urgent Situation of Indigenous Peoples of Crimea Statement of Indigenous Peoples attending the 13th session of Permanent Forum on Indigenous Issues, 11.05.2014 ; URL: http://www.un.org/News/Press/docs/2014/hr5179.doc.htm

4. Alfredsson G. International Law, International Organizations and Indigenous Peoples / Alfredsson Gudmundur // Journal of International Affairs. - 1982. - № 36. - 113 р.

5. Allen S. Reflections on the UN Declaration on the Rights of Indigenous Peoples / S. Allen, A. Xanthaki. - Oxford: Hart Publishing, 2011. - 620 p.

6. Anaya S. J. Indigenous Peoples in International Law / S. James Anaya. - NY: Oxford University Press, 1996. - 408 р.

7. Bennett G. Aboriginal Rights in International Law / Bennett Gordon. - L.: Royal Anthropological Institute, 1978. - Occasional Paper №. 37 - 88 р.

8. Cohen C. P. Human Rights of Indigenous Peoples / C. P. Cohen. - NY: Transnational Publishers 1998. - 341 p.

9. Heinz Wolfgang S. Indigenous populations, ethnic minorities and human rights / W. S. Heinz. - Saarbrc?ken: Breitenbach, 1991. - 316 р.

10. Kingsbury B. Indigenous Peoples' and the International Community with Particular Reference to the Right of Self-Determination: Ph.D. dissertation / Benedic Kingsbury. - Oxford, University of Oxford, 1984. - 234 p.

11. Martinez-Cobo J. R. Study of the problem of discrimination against indigenous populations / J. R. Martinez-Cobo. - NY: United Nations, 1981. - 55 р.

12. Kitzenko D. M. International Legal Statute of Indigenous Peoples ; thesys on PhD degree (international law) / D. M. Kitzenko. - Kiev, 2003. - 18 p. [in Ukrainian; Киценко Д.М. Міжнародно-правовий статус корінних народів: автореферат дис.... канд. юрид. наук: 12.00.11 - міжнародне право / Д.М. Киценко. - К., 2003. - 18 с.]

13. Kryazhkov V. A. Indigenous Non-numerous Peoples of North in Russian Law / V. A. Kryazhkov. - M: Norma, 2010 - 560 p. [in Russian; Кряжков В.А. Коренные малочисленные народы Севера в Российском праве / В.А. Кряжков. - М.: Норма. 2010. - 560 с.]

14. Babin B. V. Legal Statute of Indigenous peoples of Ukraine / B. V. Babin. - Donetzk: Kashtan, 2006. - 312 h. [in Ukrainian; Бабін Б.В. Правовий статус корінних народів України: моногр. / Б.В. Бабін. - Донецьк: Каштан, 2006. - 312 с.]

15. Medjlis of Crimean Tatar People. Official web-site [in Russian; Меджлис крымскотатарского народа; официальный сайт] ; URL: http://qtmm.org/

16. Agreement on Issues Related to the Restoration of the Rights of Deported Rersons, Ethnic Minorities and Peoples on 9 October, 1992, Bishkek [in Ukrianian ; Угода з питань, пов'язаних з відновленням прав депортованих осіб, національних меншин і народів від 9 жовтня 1992 р.] ; URL: http://zakon4.rada.gov.ua/laws/show/997_090

17. On the Restoration the Rights of Persons, Deported on National Grounds: Project of Law of Ukraine № 1872IV on 24 June, 2004, with veto of President of Ukraine [in Ukrianian ; Про відновлення прав осіб, депортованих за національною ознакою: проект Закону України прийнятий парламентом 24 червня 2004 р. під № 1872IV та ветований Президентом України] ; URL: http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511=16774&pf35401=54913.

18. Constitution of Ukraine, adopted at the Fifth Session of the Verkhovna Rada of Ukraine on 28 June 1996 ; URL: http://www.ccu.gov.ua/doccatalog/document?id=12084