(Ця стаття також доступна українською мовою тут.)
As Russia’s all-out war against Ukraine grinds toward the one-year mark, a collection of legal cases that date to the original invasion of Crimea and eastern Ukraine in 2014 are making their way through various courts. After a Dutch district court last month issued life sentences in absentia to three commanders of Russian-backed forces found guilty of downing Malaysian Airlines Flight MH17 on July 17, 2014, and murdering all 298 people on board, the Grand Chamber of the European Court of Human Rights (ECtHR) will deliver its early-stage judgment later this month in three joined applications by Ukraine and The Netherlands against Russia.
The ruling, scheduled to be issued Jan. 25, relates to admissibility (Articles 34 and 35 of the European Convention on Human Rights, the ECHR) and Russia’s extraterritorial jurisdiction over eastern Ukraine (Article 1 of the Convention). All three of the applications, which the court combined, concern human rights violations by Russia in eastern Ukraine, and therefore require a determination of whether Russia can be held accountable for human rights violations beyond its own territorial borders, in its neighboring state Ukraine. This, therefore, requires a detailed assessment by the ECtHR on what the precise role of Russia was back in 2014 in eastern Ukraine.
Ukraine v. Russia
The first of the three applications is Ukraine v. Russia (re Eastern Ukraine), application no. 8019/16, lodged on March 13, 2014. It alleges violations of the ECHR’s Articles 2 (right to life), 3 (torture and inhuman/degrading treatment), 5 (right to liberty and security), and 10 (freedom of expression). Ukraine lodged this case shortly after the start of the conflict in eastern Ukraine and Russia’s annexation of Crimea to request the intervention by the ECtHR. This case was split into two: Ukraine v. Russia (re Crimea), no. 20958/14, is (partly) admissible and currently in the merits phase. The part on eastern Ukraine is joined with Ukraine v. Russia (II) and Netherlands v. Russia (MH17).
The second application is Ukraine v. Russia (II), filed on June 13, 2014, application no. 43800/14, concerning the alleged abduction of three groups of children in eastern Ukraine and their forcible transfer to Russia between June and August 2014, violating Articles 3 (torture and inhuman/degrading treatment), 5 (right to liberty and security), 8 (right to private life), and Article 2 Protocol No. 4 (freedom of movement). This is a particularly important case in the context of the many abductions of children, or “evacuations,” as Russia calls them, that have occurred since Russia’s full-scale invasion in February 2022. According to Ukraine, 300,000 children have been abducted, while Russia claims to have “rescued” 700,000 children from Ukraine. Dutch investigative journalism outlet Nieuwsuur showed images of orphanages in the eastern Ukrainian area known as the Donbas where children allegedly had been abducted by Russians.
The Downing of Flight MH17
The third of the joined cases, The Netherlands v. Russia, concerns MH17, lodged on July 10, 2020, application no. 28525/20, alleging that Russia was responsible for downing the civilian airliner and failed to investigate, breaching Articles 2 (right to life), 3 (torture and inhuman/degrading treatment), and 13 (right to effective remedy). Recently, a Dutch criminal court ruled that Russia had overall control of and worked closely with fighters of the Russian-backed separatist Donetsk People’s Republic who ordered the Russian Buk missile system that was used to shoot down the plane.
Only if the joined case is found to be admissible and that Russia had jurisdiction will the case move to the merits phase. On admissibility, the Grand Chamber will discuss, in the first place, whether the victims of Russia’s alleged human rights violations had no effective, adequate, and accessible domestic remedies in Russia and that they therefore did not need to try to first go to a Russian court. Relatedly, the Court will consider whether there are ongoing violations and a pattern of violations or “administrative practice or legislation” that systematically violates human rights and an “official tolerance” by higher authorities, so that the rule to exhaust domestic remedies does not apply. In Ukraine v. Russia (re Crimea), the Grand Chamber decided that the rule to exhaust domestic remedies did not apply because the allegations involve an administrative practice.
The Court will also have to decide whether the applicants have met the admissibility requirement that complaints be filed within six months of exhausting domestic remedies. (For new applications, this rule is now four months.) This does not apply for Ukraine in their applications, since they lodged their complaints very quickly after the facts occurred. For the Netherlands, however, this is an issue in which the Court will have to decide on granting an exception, since MH17 was downed on July 17, 2014, and the application was lodged only in 2020. Here the argument of The Netherlands is that it first tried to find an amicable solution, which is common in international disputes.
Jurisdiction: Crucial Ruling for Other Cases
Finally, and crucially for many other legal proceedings against Russia at the ECtHR, is what the Court will find on whether Russia had extraterritorial jurisdiction over eastern Ukraine and was thus responsible for protecting human rights on that territory. If Russia is found to have had “decisive influence” over eastern Ukraine in and since 2014, the Court may proceed to considering whether Russia then has violated the above-mentioned Articles 2, 3, 5, 8, 10, and 13 and Article 2 Protocol No. 4. That stage could then take another one or two years. But this same question of Russia’s exact role in eastern Ukraine underlies many other applications that are on hold awaiting this decision.
In Ukraine v. Russia (re Crimea), the Grand Chamber found that Russia had jurisdiction on the basis of effective control that Russia exercised from Feb. 27, 2014, after it annexed the area. The ECtHR explained that “[w]hen coming to that decision it took into account in particular the size and strength of the increased Russian military presence in Crimea from January to March 2014, without the Ukrainian authorities’ consent or any evidence to prove that there was a threat to Russian troops stationed there under the relevant Bilateral Agreements between them, valid at the time.”
In the joined applications, the jurisdiction question is more complex because Russia denied and tried to hide its presence and former Russian officials claimed to be volunteers in their activities in eastern Ukraine among DPR forces. The Court will, however, look at the factual ties. Recently, the Dutch criminal court in the above-referenced MH17 life sentences ruling found Russia had overall control and decisive influence. Specifically, the court did so on the basis of four factors: 1) the many ties between DPR forces and the Russian state; 2) that the DPR received supplies, weapons, financing, military personnel, and military training from Russia; 3) that Russia coordinated on a military operational level with the DPR leadership and gave them instructions; and 4) that Russian armed forces also directly engaged in hostilities regularly by crossing the border into Ukraine to conduct artillery attacks and other assaults on Ukrainian targets, and did so in close coordination with DPR forces.
That decision can be informative for the ECtHR, but it must reach its own decisions independently. In addition to these three joined applications and the Crimea case before the Grand Chamber of the ECtHR, there are three other inter-state applications pending before the ECtHR by Ukraine against Russia (on a naval incident in the Kerch Strait; targeted assassinations of perceived opponents of Russia abroad; and Russian military operations on Ukrainian territory) and more than 8,500 individual applications that appear related to events in Crimea, eastern Ukraine, and the Sea of Azov.