On 25 January 2023 Ukraine scored another big victory on the legal battlefield against Russia. 
On this day, the Grand Chamber of the European Court of Human Rights (the “Court“) delivered its admissibility decision in the case of Ukraine and the Netherlands v. Russia (the “Decision“). 

The case was brought under three applications by the Ukrainian (applications nos. 8019/16 and 43800/14) and Dutch (application No. 28525/20) Governments.  All three applications relate to the covert aggression and occupation of the East of Ukraine since early 2014 by Russian-controlled proxies.  One of Ukraine’s applications (No. 8019/16), which was lodged on 13 June 2014, concerns Ukraine’s allegations of a pattern (“administrative practice”) of continuing violations of a number of Articles of the European Convention on Human Rights (the “Convention“) by Russia.  Another application filed by Ukraine (No. 43800/14) concerns alleged abduction of children in the East of Ukraine in 2014 and their temporary transfer to Russia.  The application of the Dutch Government (No. 28525/20) concerns the downing on 17 July 2014 of Malaysia Airlines flight MH17 over eastern regions of Ukraine.

One of the most important findings by the Court is that Ukraine’s complaints of violations that had place from 11 May 2014 (the date when so-called “independence referendums” took place in the parts of the Donetsk and Luhansk regions under separatist control) as well as the Netherlands’ complaints concerning the downing of flight MH17 fall within the jurisdiction ratione loci of Russia.  The Court recognised the fact that Russia has exercised “effective control” over all areas of Donetsk and Luhansk regions in the hands of separatists ever since. 

This is the first decision of an international judicial body to legally establish the fact of “effective control” of certain areas of Donetsk and Luhansk regions by Russia.  This means that the acts and omissions of the separatists since 11 May 2014 are attributed to Russia.  It will have a crucial meaning for both political and legal assessment of the war which Russia unleashed against Ukraine in 2014. 

Inter alia, the Court declared admissible the following complaints of “administrative practice” in breach of:

• Article 2 of the Convention consisting of unlawful military attacks against civilians and civilian objects, including the shooting down of flight MH17, the shooting of civilians and the summary execution and torture or beating to death of civilians and Ukrainian soldiers who were prisoners of war or otherwise hors de combat;
• Article 3 of the Convention consisting of the torture of civilians and Ukrainian soldiers who were prisoners of war;
• Article 4 § 2 of the Convention consisting of forced labour;
• Article 5 of the Convention consisting of abductions, unlawful arrests and lengthy unlawful detentions;
• Article 9 of the Convention consisting of deliberate attacks on various religious congregations not conforming to the Russian Orthodox tradition;
• Article 10 of the Convention consisting of the targeting of independent journalists and the blocking of Ukrainian broadcasters;
• Article 1 of Protocol No. 1 to the Convention consisting of the destruction of private property, and the unlawful appropriation of private property without compensation;
• Article 2 of Protocol No. 1 to the Convention consisting of the prohibition of education in the Ukrainian language;
• Article 14 of the Convention consisting of the targeting of civilians of Ukrainian ethnicity or citizens who supported Ukrainian territorial integrity;
• Articles 3, 5 and 8 of the Convention and Article 2 of Protocol No. 4 to the Convention in respect of the alleged abduction and transfer to Russia of three groups of children and accompanying adults. 

While the Decision does not bring this case to an end, it enhances Ukraine’s chances to win on the merits.  It is expected that rendering the judgment on the merits could take one more year or longer. 

The judgment on merits will be important from one more jurisdictional point. The Court decided to reserve its decision on whether bombing and shelling of areas outside separatist control also fall within Russian jurisdiction at the merits stage of the proceedings. This issue is of crucial importance beyond this case considering, in particular, Russian constant and systematic bombing and shelling of the entire territory of Ukraine since 24 February 2022 and the Court’s previous approach in Case of Georgia v. Russia (II) (No. 38263/08).  In this case, the Court held that the events which occurred during the active phase of the hostilities on Georgian territories did not fall within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention (Silent enim leges inter arma (“In times of war law falls silent”).  We believe that such an approach should be reconsidered in light of Russia’s enormous violation of human rights that began in 2014 and still continue yet on the entire territory of Ukraine.

What effects of the Decision are to be expected now?

To begin with, the Decision will enhance the process of holding Russia accountable for the actions that led to massive human rights violations and tragedies in the East of Ukraine and paved the way for the full-scale aggression which broke out on 24 February 2022.  It is of note that this case is one of the five inter-State cases pending before the Court with Russia as the respondent State in relation to events in Ukraine from 2014 onwards.  Around 8,500 individual applications are pending against Ukraine, Russia or both in relation to the conflict in Ukraine.

The Court’s findings will strengthen the positions of applicants aiming to sue Russia in the Court, other international judicial bodies and investment arbitrations. 

This decision may also be used in international communication to put further diplomatic pressure on Russia.

By Yaroslav Brych and Bohdan Prybora