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Ukraine's annexed territories: Council ponders mutual legal assistance problems

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14 November 2016

The EU is examining ways to undertake "mutual legal assistance cooperation with the illegally annexed territories in Ukraine, both with regard to civil and criminal matters," with some Member States in favour of "a common EU standard as regards their cooperation with the illegally annexed territories of Ukraine." A recent paper from the Dutch Presidency of the Council explores the options.

See: NOTE from: Presidency to: Delegations: Mutual legal assistance between the EU Member States and Ukraine (13954/1/16 REV 1, 11 November 2016, pdf)

The issue of making mutual legal assistance to the authorities in the Crimea and Sevastopol is a tricky one, and the Presidency notes: "the definition of the problem itself contains a political dimension, including both political and technical consequences in the relationship with Russia."

The paper continues:

"The fact that MS do not recognize the annexation of the Ukrainian territories by the Russian Federation offers several possible scenarios in regard to those territories when applying for MLA:

a) continuation of communication with the Ukrainian authorities only. The practical consequence is that Ukrainian authorities will be not able to carry out the MLA if the relevant person or evidence is located in the territory not under their effective control and in absence of cooperation with Russia, we risk to create a "territory of impunity".

b) communication with the Ukrainian authorities by asking them to have the MS request executed by the Russian authorities. In that situation, MS would be asking Ukraine to apply the doctrine of effective control of the illegally annexed territories instead of the MS. This solution would be very uncommon and would not only presuppose an agreement by Ukraine to commit to this, but also the willingness of Russia to accept such requests.

c) communication directly with the Russian Federation, on a case by case basis, when it comes to extremely serious criminal offenses or crucial social and family interests (e.g. applying the doctrine of effective control in some conditional way). This approach would prevent the creation of a territory of impunity and at the same time, it would seem as an effective pragmatic solution preserving the possibility to seek judicial cooperation in relation to those territories. However, this might be contrary to the above 2015 Declarations of Ukraine and must therefore be carried out in close dialogue with the Ukrainian authorities.

d) setting up of a mediator for mutual legal assistance/judicial cooperation at EU level (e.g. from EEAS or from Eurojust) to communicate with the Russian authorities. This solution might be sensitive to Ukraine. Involvement of Eurojust would be limited to criminal matters only."

The views of Member States are sought in order to work out a way to make progress:

"In view of the above-mentioned situation, Member States are invited to express their views on the following questions:

1. Do you support the idea of formulating a common EU policy/common EU approach concerning the applications for MLA in regard to Ukraine with respect to the illegally annexed territories of the Crimean Peninsula and the City of Sevastopol?

2. If yes, should it be a in a non-binding (guidelines) or a binding form? Which of the above-mentioned approaches (point 8) would you prefer as the basis for the common EU policy in this area?

3. If the application of the doctrine of effective control of the illegally annexed territories is acceptable for you, under which conditions and in which cases should it be applied by MS?

4. If your answer to question 3 is negative, would you prefer to monitor the situation periodically and to continue the exchange of best practices at the EU level in this regard?"