A/HRC/45/CRP.9
hearings’ in their ‘criminal proceedings’, including bail ‘hearings’, preliminary ‘hearings’ 176
and pronouncements of ‘verdicts’.
G.
Right to appeal
136. OHCHR is concerned that ‘court’ structures of both self-proclaimed ‘republics’ do
not guarantee the review of ‘convictions’ and ‘sentences’ by a higher tribunal, in violation of
the right to appeal under international human rights law. 177
137. To ensure the right to a review of a conviction and a sentence by a higher tribunal, the
convicted person must have effective access to each of the reviewing instances.
138. In territory controlled by both self-proclaimed ‘republics’, appeals are carried out by
‘supreme courts’, which include ‘appeal chambers’.178 For grave crimes, including crimes
against public security, the ‘supreme courts’ act as both a ‘court’ of first instance and an
appeal ‘court’.179 This means that appeals can only be heard within the same ‘supreme courts’
and only under a cassation procedure, which prescribes review only for matters of the law. 180
This review procedure does not meet the three guarantees of the right to appeal enshrined in
the international human rights law: the right to a review of a sentence by an instance
independent from the trial court, the right to access all reviewing instances and the right to a
substantive review of a sentence, including the sufficiency of evidence.181
139. In territory controlled by ‘Luhansk people’s republic’, individuals ‘convicted’ by
‘courts of first instance’ who initiated an appeal remained in legal limbo due to the absence
of a ‘supreme court’ until 25 October 2018. As a consequence, their sentences did not enter
into force and they remained in pre-trial detention facilities, sometimes beyond the duration
of their sentences.182
VII. Human Rights Concerns in Conflict-Related Criminal
Proceedings in Crimea
140. The UN General Assembly has recognized Crimea as being temporarily occupied by
the Russian Federation.183 In the case of occupation, international humanitarian law and
human rights law apply concurrently, and place protection obligations on both the occupying
Power and the State whose territory is under occupation. As the occupying Power, the
Russian Federation must respect its obligations under international human rights law in
Crimea from the moment it acquired “effective control” over the territory. 184
176
177
178
179
180
181
182
183
184
30
In this regard, OHCHR notes that article 156 of the ‘criminal procedure code’ of the ‘Donetsk
people’s republic’ allows for a preliminary ‘hearing’ in absence of the defendant.
ICCPR, article 14.5.
The ‘appeal chamber’ of the ‘supreme court’ of ‘Donetsk people’s republic’ performs the function of
an ‘appeal instance’ until the establishment of a ‘court of appeal’ by 2022, according to the
transitional provisions of the ‘law’ of ‘on the judicial system’.
Article 33.3 ‘criminal procedure code’ of ‘Luhansk people’s republic’ and article 35.1 ‘criminal
procedure code’ of ‘Donetsk people’s republic’.
“Where the highest court of a country acts as the first and only instance, the absence of the right to
review by a higher tribunal is not offset by the fact of being tried by the supreme tribunal of the State
party concerned; rather, such a system is incompatible with the [ICCPR]”. HRC, General Comment
No. 32, para. 47.
HRC, General Comment No. 32, paras. 45, 47 and 48.
See OHCHR, Report on Human Rights Situation in Ukraine 16 February to 15 May 2018, para. 53.
Resolutions 71/205, 72/190, 73/263, and 74/168.
See ECtHR Judgment in the case of Loizidou v. Turkey (Preliminary objections), 23 March 1995,
par. 62, available at hudoc.echr.coe.int/eng?i=001-57920. See also article 42 of the 1907 Hague
Regulations states: “Territory is considered occupied when it is actually placed under the authority of
the hostile army. The occupation extends only to the territory where such authority has been
established and can be exercised.”
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