A/HRC/45/CRP.9 A. Retroactive application of criminal laws 141. According to international humanitarian law, protected persons shall not be arrested, prosecuted or convicted by the occupying Power for acts committed or for opinions expressed before the occupation, with the exception of breaches of the laws and customs of war. The courts shall apply only those provisions of law which were applicable at the time of the offence, and which are in accordance with general principles of law, in particular the principle that the penalty shall be proportionate to the offence. The principle of non-retroactive application of criminal law is further enshrined in international human rights law, according to which no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time of commission.185 142. OHCHR has documented conflict-related cases concerning 29 individuals (24 men and 5 women) who were convicted in Crimea pursuant to the laws of the Russian Federation for acts committed before the occupation began. 143. The majority of these cases concerned social media posts containing symbols, slogans or statements of organisations banned in the Russian Federation or materials considered extremist in the Russian Federation, but legal in Ukraine.186 For instance, on 21 February 2017, a Crimean Tatar man from Kamenka was sentenced by a Crimean court to 11 days in detention for a social media post in 2013 featuring an organisation prohibited in the Russian Federation.187 In a similar case, a Crimean Tatar man from Bakhchysarai was sentenced to 12 days in detention for uploading to social media in 2011-2012 material featuring an organisation prohibited in the Russian Federation and four folk songs of a Chechen singer containing anti-Russian rhetoric.188 In both cases, the judges found the defendants guilty of promoting extremism and disregarded the fact that the alleged violations took place before the imposition of Russian Federation laws in Crimea criminalizing such conduct, in violation of the principle of legality. B. Right to a fair trial 144. International human rights law provides that in the determination of any criminal charges, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Other fair trial rights, applicable to any person facing criminal charges, include the presumption of innocence, the right to defend oneself or be assisted by a lawyer of one’s own choice, the right to trial without undue delay and the right to appeal or review.189 145. Since the imposition of Russian Federation law in Crimea, fair trial rights in conflictrelated cases have been a particular concern. Legal proceedings involving people perceived to be in opposition to the Russian Federation authorities in Crimea, as well as those accused of membership in banned religious groups, espionage and subversive activities in Crimea, often failed to uphold due process and fair trial guarantees. 1. Right to a public hearing 146. Court hearings dealing with allegations of Hizb ut-Tahrir190 membership, espionage and subversive activities, which were likely to attract public attention, were held in camera, 185 186 187 188 189 190 ICCPR, article 15. The Federal List of Extremist Materials was introduced by Federal Law On Combating Extremist Activities, No. 114-FZ, 25 July 2002. HRMMU interview, 23 February 2017. To justify the conviction, the judge referred to the “personal evaluation report” drawn up by the head of Bakhchysarai police, in which the defendant was described as “displaying hatred towards the Russian-speaking population and supporting anti-Russian propaganda”. HRMMU interview, 5 April 2017. ICCPR, articles 14-15; European Convention on Human Rights and Fundamental Freedoms, article 6. Hizb ut-Tahrir is a Muslim group considered as a terrorist organisation under Russian Federation law, while it is lawful under Ukrainian legislation. 31