Oleksiy Plotnikov (PhD, international judiciary)
The European Court of Human Rights issued its long-awaited admissible ruling in Ukraine and the Netherlands v. Russia on January 26 [1]. To say the decision is monumental would be an understatement. It is arguably the largest admissibility judgement in the history of the High Court, bigger than a doctorate.
The rationale of the European judges was stated in 949 paragraphs. Comparatively, the decision on the admissibility of the Crimean complaint of Ukraine against Russia, in which the ECtHR established the aggressor’s responsibility for the events that have occurred in Crimea since February 2014, contains 505 paragraphs [2], whereas the decision on the admissibility of the Georgian complaint on the occupation of South Ossetia is limited to one hundred [3].
The proof that the aggressor state has controlled the actions of terrorist groups in the east of Ukraine since 2014 is discussed in only 120 paragraphs. Because it is impossible to assess the full ruling in a single text or even to explain all the issues considered by the European Court of Human Rights, we will limit ourselves to a few key themes.
What is this case about, and why are the Netherlands involved? Situation was researched by ARC’s expert Olexii Plotnikov.
Four interstate applications were filed with the European Court of Human Rights. Ukraine filed two interstate applications over the events in Crimea and eastern Ukraine on March 13, 2014, and August 25, 2015. To optimize proceedings in different regions, in 2018 all issues related to Crimea were consolidated into a single case titled “Ukraine v. Russia (re Crimea)” and all issues related to Russian violations in the Donetsk and Luhansk regions were consolidated into a separate case titled “Ukraine v. Russia (re Eastern Ukraine)”.
In its complaints, Ukraine states that the Russian occupying “authorities” practice constant violations of almost all articles of the European Convention on Human Rights and its protocols, in particular, they kill the civilian population in hostilities and through extrajudicial killings of civilians and captured military personnel, torture civilians and military personnel , use forced labor, kidnapping and illegal arrests, attack journalists, block the broadcasting of Ukrainian media, destroy private property, and prohibit education in the Ukrainian language.
This constitutes a violation of Articles 2 (right to life), 3 (prohibition of torture), 4 (prohibition of forced labor), 5 (right to liberty and security), 9 (freedom of thought, conscience and religion), 10 (freedom of expression), 11 (freedom of assembly and association), 14 (prohibition of discrimination) of the Convention, Articles 1 (right to property), 2 (right to education), 3 (right to free elections) of Protocol 1 to the Convention, 1950.
Another complaint was filed by Ukraine in 2014, and it concerned the abduction of three groups of children in the areas controlled by Russian terrorists in the east of Ukraine and their deportation to the Russian Federation. This violated Articles 3, 5, 8 (right to private and family life) of the Convention and Article 2 of Protocol 4 (freedom of movement).
In 2020, the Netherlands filed its complaint against Russia. It concerns the flight MH17 that was shot down in 2014. According to the Dutch government, Russia is responsible for the deaths of Dutch citizens in the downed airliner, and its refusal to conduct an honest investigation has caused suffering to the families of the victims. This violated Articles 2, 3 and 13 (right to an effective remedy) of the Convention.
What is the nature of ECtHR decision?
This is a judgement about the admissibility of the complaint, or whether the court has the right to hear the matter. Even prior to the expulsion of the aggressor state from the Council of Europe, the Russian representatives had the opportunity to declare that the Court allegedly could not hear the case because, allegedly, “Russia is not a party to the conflict in Ukraine”, the violations allegedly “do not fall under the jurisdiction of the Russian Federation”, there is allegedly “no credible evidence in the complaints of Ukraine and the Netherlands:”, and the available evidence is allegedly “fabricated”.
Concerning the Netherlands’ claim, the Russians also asserted that Ukraine was allegedly to blame for the plane’s destruction, given it occurred in Ukrainian airspace. The Russian side even accused the Ukrainian side of alleged “abusing its right to application to the EctHR”. Ukraine’s position and Russia’s “reasons” are systematized in the article prepared by the Ukrainian Helsinki Human Rights Union [4].
The European judges rejected all objections of the defendants, with some minor exceptions, and recognized the complaints of Ukraine and the Netherlands as admissible. This means that the Court proceeded to consider the merits of the case for a final decision. However, Russia will no longer participate in the process, although it has the right to do so. Although the European Court recognized that it can consider complaints about violations committed by the Russian Federation until September 16, 2022, and therefore the Russian Federation retains its procedural rights in such cases [5], the Russian side itself refused to participate in the case further.
The judgment made is crucial for the case’s subsequent consideration, but we should not expect a speedy decision on the merits, i.e. whether the relevant offenses were actually committed and whether the victims should be compensated. For instance, in the case “Georgia v. Russia (II)”, which involved Russian aggression in 2008, the admissibility decision was rendered in 2011 and the verdict on the merits would not be rendered until 2021.
The good news is that the ruling on the admissibility of an interstate complaint with a high probability indicates that the Court will use the same strategy to more than 8,500 [6] individual applications connected to Russian aggression. This does not necessarily imply the admissibility of such claims, but it simplifies the burden for the applicants, especially given the Court’s acceptance of their right to not exhaust “internal” remedies, connected with the Russian Federation.
Evidence of occupation and the Crimean footprint
The fundamental conclusion of the ECtHR, which will allow the aggressor state to be held liable for human rights violations in the eastern regions of Ukraine, is that since at least May 11, 2014, the Russian Federation has effectively controlled terrorist groups in eastern Ukraine, as the dates of the criminal “referendums” organized by the Russia-controlled terrorist organizations.
Regarding the “evidence” presented by the Russian attorneys, the Court noted plainly, “there has been a distinct lack of frankness and transparency in the written submissions provided by the respondent Government”. For instance, it involved the purposeful concealment of Ihor Girkin’s ties to the FSB. In the earlier decision on the admissibility of the Crimean case, it was determined that the Russian side was unable to explain the nature of Girkin’s participation in the events in the Crimea.
This was confirmed in the latest decision.
The court analyzed the evidence of the military support of terrorists by the Russian state, its influence on the military strategy, the supply of weapons and equipment, training, artillery cover received by the armed formations from the Russian side of the border, political and economic support. With this in mind, the judges determined that ““beyond a shadow of a doubt” that during the relevant period the …entities were operating under the decisive influence, operative direction and military support of the Russian Federation. The evidence clearly established that the …entities operating in eastern Ukraine were proxies of the Russian Federation. They depended entirely on Russia for funding, which had initially been provided by individuals close to the President and was later provided directly from State funds”.
Court added that “they depended upon Russia for military and political support, through the infiltration of Russian special forces operatives who had instigated the armed rebellion… Many of the key Russian military and political leaders involved in the coup in Crimea and the subsequent occupation had moved immediately on to become part of the “institutions”… Mr. Girkin had been directly involved in the seizure of the Crimean Parliament building on 27 February 2014… and Mr Borodai had worked as an “advisor” to Mr. Aksyonov”.
The Russian side’s argument that the terrorists “bought weapons at the military market” did not impress the European Court. The decision states that “against the weighty evidence of the ongoing, organized provision of weapons and other military equipment from and by the Russian Federation is the suggestion by the respondent Government that the separatists could have acquired their weapons and equipment on the arms market. There is no evidence to support this suggestion.
There are no detailed submissions in the respondent Government’s memorials as to how this arms market operates, who are the key players and how and from whom, specifically, the [terroristic entities] might have sourced the weapons and equipment identified in eastern Ukraine”.
Separately, the Court emphasized that the Russian Federation is accountable for human rights breaches in the occupied regions due to its effective control over terroristic groups, which extended its territorial conventional responsibility to the areas it controlled. Another question is whether it is responsible for violations that occurred as a result of its actions, but in Ukrainian-controlled territory, such as the shelling. In this case, the Court was confronted with a situation that it had earlier created in Georgia v. Russia (II). In particular, it concluded that Russia did not have jurisdiction over the deaths of civilians as a result of hostilities, as it did not exert effective authority over Georgian territory during the turmoil of the 2008 war.
It is noteworthy that already in the decision on admissibility, the Court rejected the relevant objection of the Russian side regarding the shooting down of the MH17 plane, since it was shot down over the territory controlled by Russian occupying forces. At the same time, in relation to other violations of human rights during hostilities, the Court indicated that the relevant claims are admissible, but at the stage of consideration of the case on the merits each case should be considered individually in order to determine whether the standard of the case “Georgia v. of Russia (II)”, that is, can it be assumed that the Russian Federation is responsible for every case of rights violations during active hostilities.
At present, it appears that all or most of such complaints may still be considered. As the British expert Marko Milanovic writes, “I just cannot see how a human rights court, sitting in the Europe that we have today, will be able to say that the obliteration of Ukrainian cities such as Mariupol through the mass use of explosive weapons is not properly a human rights question” [7].
Administrative practice of human rights violations
The submission of any complaint to the ECtHR, including an interstate one, requires that the applicant first do everything possible to resolve the issue in the national legal system. The so-called local remedies rule provides for recourse to state bodies competent to correct violations (usually courts). However, compliance with this rule is not required if the applicant proves that the state has a so-called “administrative practice” of human rights violations, i.e. violations are condoned or tolerated by the state bodies themselves, which makes appeals to such bodies ineffective [8] .
Due to the administrative practice that has developed in the Russian Federation and the occupied areas, the Ukraine argued that it is not need to bring claims of human rights abuses before Russian courts. The court agreed with this argument, recognizing that the aggressor’s actions constitute an administrative practice of attacks on civilians and civilian objects (including the destruction of the Malaysian plane), torture and massacres of civilians and captured Ukrainian soldiers, forced labor, kidnappings, illegal arrests, and deprivation of liberty, and attacks and intimidation of representatives of religious denominations that do not belong to the “official Russian religion”. In addition, the Court determined the possible existence of an administrative practice of violation of the prohibition on inhumane treatment, illegal deprivation of liberty and the right to private and family life, and violation of the freedom of movement in cases involving the abduction of Ukrainian children and their removal to Russia.
Win, but not a shutout
In complex cases involving a significant number of violations, the ECtHR rarely finds each and every claim acceptable while determining admissibility. This scenario was no different. Since this article protects the right to elect legislative bodies and not the head of state, the Court ruled that Ukraine’s complaint regarding the violation of Article 3 of Protocol 1 concerning the inability of citizens in occupied territories to participate in elections for the President of Ukraine was inadmissible. In its complaint, Ukraine did not make clear enough that it related to parliamentary elections.
Furthermore, the Court rejected one of Ukraine’s claims on the return of children to the Russian Federation. If the Court cannot affirm that the breach of the rights of these children constituted an administrative practice, Ukraine has requested that the case of each child and the adults who accompanied them be reviewed as individual complaints.
Regarding the potential of evaluating child cases exactly as individual applications, the court acknowledged the presence of administrative practice and observed that Ukrainian authorities have not exhausted the legal protection options available in Russia. In particular, it stated that an appeal should have been filed against the decision of the Russian investigative committee, which did not find a crime in the case of child abduction. Even though the outcome was uncertain, Ukraine was nonetheless required to pursue a national remedy in a court in Russia.
Recognizing some submissions as inadmissible does not diminish the significance of Ukraine’s triumph. Principally, it has been established that the Russian Federation is accountable for the human rights situation in the seized territories of Donetsk and Luhansk since 2014. The “we are not there” strategy failed, same as an attempt to place the responsibility on Ukraine. This established the criteria for handling individual complaints and laid the groundwork for recovering damages from the aggressor.
- https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-222889%22]}
- https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-207622%22]}
- https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-108097%22]}
- https://helsinki.org.ua/articles/ukraina-ta-niderlandy-proty-rosii-yespl-ukhvalyv-rishennia-u-mizhderzhavniy-spravi-shchodo-viyny/
- https://echr.coe.int/Documents/Resolution_ECHR_cessation_membership_Russia_CoE_ENG.pdf
- https://www.justsecurity.org/84729/ukraine-netherlands-await-pivotal-rulings-in-cases-against-russia-from-previous-years-of-war/
- https://www.ejiltalk.org/the-european-courts-admissibility-decision-in-ukraine-and-the-netherlands-v-russia-the-good-the-bad-and-the-ugly-part-i/
- https://www.echr.coe.int/documents/admissibility_guide_eng.pdf
