Legal summary
January 2023
Ukraine and the Netherlands v. Russia (dec.) [GC] - 43800/14, 8019/16 and 28525/20
Decision 30.11.2022 [GC]
Article 1
Jurisdiction of States
Jurisdiction of Russia over parts of Eastern Ukraine controlled by separatists
Article 33
Inter-State application
Alleged administrative practices by Russia in eastern Ukraine under separatist control resulting in multiple Convention violations: partly admissible
Downing of Malaysian Airlines flight MH17: admissible
Article 35
Article 35-1
Exhaustion of domestic remedies
Four-month period (former six-month)
No effective remedy available in Russia to relatives of victims of Malaysian Airlines flight MH17: admissible
International investigation into downing of flight MH17 and use of international-law remedies before applying to the Court (six years after the incident): application within time-limit
Facts – The present three inter-state applications concern complaints related to the conflict in eastern Ukraine in the Donetsk and Luhansk regions (“Donbass”) involving pro-Russian separatists which began in spring 2014. The violence rapidly escalated, with armed groups seizing public buildings and towns. The government of Ukraine launched an “Anti-Terrorist Operation” to re-establish control. On 11 May 2014, the separatists held “referendums” in the territory they controlled and subsequently declared the independence of the “Donetsk People’s Republic” (“DPR”) and the “Lugansk People’s Republic” (“LPR”). The fighting intensified and on 17 July 2014 Malaysian Airlines flight MH17 was downed in the Donetsk region, causing the deaths of all 298 civilians aboard, including 196 Dutch nationals. The application lodged by the Dutch Government concerned specifically this incident. In its two applications, the Ukrainian Government pleaded an administrative practice by Russia which resulted in numerous Convention violations in the relevant parts of Donbass.
Law –
Preliminary observations and scope of the case –
The Court underlined the role of inter-State cases in the protection of the public order of Europe by enabling States to ensure the collective enforcement of Convention rights regardless of nationality or other interests. Furthermore, given the events which had unfolded since 26 January 2022, the date of the admissibility hearing in the case, the Court emphasised the overall context of the present case, which was one of five inter-State cases pending in relation to events in Ukraine from 2014 onwards. One of those had already given rise to the decision Ukraine v. Russia (re Crimea). Further, around 8,500 individual applications were pending against Ukraine, Russia or both in this respect.
The Russian Federation had ceased to be a High Contracting Party to the European Convention on Human Rights as from 16 September 2022. This followed resolutions by the Committee of Ministers of the Council of Europe on 16 March 2022 (CM/Res(2022)2) and the Plenary of the European Court on 22 March 2022. Since the underlying facts in the case had occurred before 16 September 2022, in line with the latter resolution, the Court was competent to examine the applicant Governments’ complaints under Article 19 read in conjunction with Article 58 §§ 2 and 3 of the Convention.
In assessing the admissibility of the complaints of continuing administrative practices, including the question of the jurisdiction, the Court considered the evidence available to it up to the date of the admissibility hearing (26 January 2022), the evidence post-dating the hearing being relevant at any subsequent merits stage.
Lastly, the decision was concerned only with the extent of the jurisdiction and responsibility of the Russian Federation for the violations alleged in this case and not the jurisdiction of any other State in respect of the events in eastern Ukraine.
Approach to the evidence –
The applicant Governments bore the initial burden of proof, in line with the Court’s general principles on this matter, in respect of their allegations as to Russian jurisdiction and the violations alleged. However, the respondent Government had declined to provide, following the Court’s specific request, information and supporting evidence which had been wholly or in large part within their exclusive knowledge. Their response to that request had been superficial and evasive and there had been a distinct lack of frankness and transparency in their written submissions. Furthermore, in view of the special relationship that the respondent State enjoyed with the separatist entities at the relevant time, the respondent Government could have obtained material which would have been of substantial assistance to the Court. However, no such material had been provided. Accordingly, the Court found that the approach taken by the respondent Government did not represent a constructive engagement with the Court’s requests for information or, more generally, with the proceedings for the examination of the case. The respondent Government had thus fallen short of their obligation to furnish all necessary facilities to the Court in its task of establishing the facts of the case, as required under Article 38 of the Convention and Rule 44A of the Rules of Court. The Court would therefore draw all the inferences that it deemed relevant.
The Court set out the general principles concerning the assessment of evidence and explained its approach to the main categories of evidence in the case-file. The Court recalled that the “beyond reasonable doubt” standard of proof was applicable in relation to the respondent State’s “jurisdiction” in eastern Ukraine (Ukraine v. Russia (re Crimea)). The Court further decided to apply, for the purposes of admissibility, a uniform standard of proof - that of “sufficiently substantiated prima facie evidence” - to the alleged Convention violations, both individual and as a pattern (“administrative practice”). Such a standard in respect of both types of allegations promoted internal consistency and harmony in the interpretation and application of the evidentiary admissibility threshold in inter-State cases.
Requirement of a genuine application (Article 33) –
The respondent Government’s allegations (including as to political propaganda and submission of false evidence) were dismissed as unsubstantiated. The issue before the Court was a legal one.
Conclusion: preliminary objection dismissed (unanimously).
Article 1 – Jurisdiction
General remark –
Even in cases where it was established that the alleged violations had occurred in an area under the respondent State’s effective control (and thus within its ratione loci jurisdiction), the latter would only be responsible for breaches of the Convention if it also had ratione personae jurisdiction; in other words, the impugned acts or omissions must have been committed by State authorities or be otherwise attributable to the respondent State.
Issues of attribution and the responsibility of the respondent State under the Convention for the acts complained of fell to be examined at the merits phase of the proceedings. That, however, concerned the evidential question whether the act or omission complained of was in fact attributable to a State agent as alleged and did not preclude an assessment, at the admissibility stage, of whether particular individuals or entities could be considered State agents such that any actions shown at the later merits stage to have been taken by them would be capable of giving rise to the responsibility of the State. Thus, while the test for establishing the existence of jurisdiction under Article 1 was not the same as the test for establishing a State’s responsibility for an internationally wrongful act under international law, now codified in the ILC Articles on Responsibility of States for International Wrongful Acts (“ARSIWA”), there might be some areas of overlap in so far as the Court was invited to examine whether any acts of the perpetrators were to be attributed to the State in the context of its jurisdiction assessment. In determining whether an individual or entity might be considered a State agent, the rules set out in the ARSIWA as applied by international courts and tribunals were clearly relevant and the Court’s case-law shows that they were taken into account.
Effective control over the relevant parts of the Donetsk and Luhansk regions –
The Court held, on the basis of the vast body of evidence before it, that Russia had effective control over all areas in the hands of separatists from 11 May 2014 on account of its military presence in eastern Ukraine and the decisive degree of influence it enjoyed over these areas as a result of its military, political and economic support to the “DPR” and the “LPR”. In particular, the Court found it established beyond any reasonable doubt that there had been Russian military personnel present in an active capacity in Donbass from April 2014 and that there had been a large-scale deployment of Russian troops from, at the very latest, August 2014. It further found that the respondent State had a significant influence on the separatists’ military strategy. Several prominent separatists in command positions were senior members of the Russian military acting under Russian instructions, including the person who had had formal overall command of the armed forces of the “DPR” and the “LPR”. Further, Russia had provided weapons and other military equipment to separatists on a significant scale (including the Buk-missile used to shoot down flight MH17). Russia had carried out artillery attacks upon requests from the separatists and provided other military support. There was also clear evidence of political support, including at international level, being provided to the “DPR” and the “LPR” and the Russian Federation had played a significant role in their financing enabling their economic survival.
By the time of the 11 May 2014 “referendums”, the separatist operation as a whole had been managed and coordinated by the Russian Federation. The threshold for establishing Russian jurisdiction in respect of allegations concerning events which took place within these areas after 11 May 2014 had therefore been passed. That finding meant that the acts and omissions of the separatists were automatically attributable to the Russian Federation. In this connection, the Court recalled that in purely territorial cases, the acts and omissions of local administration were automatically attributable to the territorial State and thus, in cases where a State’s ratione loci jurisdiction was established outside its sovereign borders, to the State which had Article 1 jurisdiction. In the absence of any evidence demonstrating that the dependence of the entities on Russia had decreased since 2014, the jurisdiction of the respondent State continued as at the date of the hearing on 26 January 2022.
Relevance of international armed conflict –
According to the Court’s approach in its judgment in the case of Georgia v. Russia (II) [GC], the first question to be addressed in cases concerning armed conflict was whether the complaints concerned “military operations carried out during an active phase of hostilities”, in the sense of “armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos”. In that case, the question had been answered in the affirmative and, as a result, there was no extraterritorial jurisdiction of either kind in respect of the relevant substantive complaints, although there was a duty to investigate deaths which had occurred.
At the same time, in that case, there had been a clear, single, continuous five‑day phase of intense fighting during which Russian troops had advanced on Georgian territory seeking to establish control; after that, a ceasefire agreement had been reached and largely observed. The Grand Chamber had therefore been able to refer to “the five-day war” as a distinct “active phase of hostilities” and to separate out complaints which it had identified as concerning “military operations carried out during the active phase of hostilities”. It had summarised the alleged attacks falling under this heading as covering “bombing, shelling and artillery fire”.
However, the Georgia v. Russia (II) judgment could not be seen as authority for excluding entirely from a State’s Article 1 jurisdiction a specific temporal phase of an international armed conflict. Indeed, the Court had found jurisdiction to exist in respect of the detention and treatment of civilians and prisoners of war even during the “five-day war”. There could therefore be no doubt that a State might have extraterritorial jurisdiction in respect of complaints concerning events which occurred while active hostilities were taking place.
Unlike the above case, the vast majority of the complaints advanced in the present case concerned events unconnected with military operations occurring within the area under the effective control of the separatists at the relevant time and therefore could not be excluded from the spatial jurisdiction of the respondent State. The Court examined whether certain complaints or aspects of them might be said to be excluded from any jurisdiction established, on the basis that they had occurred outside any area of effective control or concerned “military operations carried out during an active phase of hostilities”.
Complaints within spatial jurisdiction (ratione loci) of the respondent State –
Complaints of the Ukrainian Government – The complaints concerning events which had occurred wholly within the territory under separatist control from 11 May 2014 fell within the respondent State’s jurisdiction ratione loci.
Conclusion: preliminary objection dismissed (unanimously).
Complaints of the Dutch Government concerning the downing of flight MH17 –Those complaints fell within Russia’s spatial jurisdiction which covered the territory on the ground as well as the airspace above it. Both the firing of the Buk-missile, which had been supplied and transported by Russia, and the consequent downing of flight MH17 had occurred within territory which had been in the hands of the separatists. The painstaking criminal investigation into the incident which had taken place in the context of the international joint investigation team (“JIT”) had provided a great deal of clarity as to the circumstances of the downing of flight MH17. There was no evidence of fighting to establish control in the areas directly relevant to the missile launch site or the impact site such that the ensuing “context of chaos” might be said to preclude jurisdiction being established. Moreover, the “chaos” did not inevitably exist in the context of the use of surface-to-air missiles, which were used to attack specific targets in the air, even where there was no armed confrontation on the ground below.
Conclusion: preliminary objection dismissed (by majority).
Complaints outside spatial jurisdiction (ratione loci) of the respondent State
The Ukrainian Government had complained about the bombing and shelling of areas outside separatist control, alleging administrative practices in violation of Article 2 and Article 1 of Protocol No. 1 and raising associated Article 14 complaints. As the victims had been outside the areas controlled by separatists, those complaints were excluded from Russia’s spatial jurisdiction. It had to be thus considered whether these complaints could fall within Russian jurisdiction on account of the authority or control of agents of the Russian State (“personal jurisdiction”). This required a careful examination of whether the relevant incidents had been “military operations carried out during the active phase of hostilities” and therefore excluded from personal jurisdiction on the basis of the exception identified in Georgia v. Russia (II).
Conclusion: preliminary objection joined to the merits (by majority).
Jurisdiction ratione materiae of the Court in respect of armed conflict –
The Convention’s safeguards continued to apply even in situations of international armed conflict. The Court accordingly had ratione materiae jurisdiction to examine the applicant States’ allegations concerning the downing of flight MH17, shelling and other events which had occurred during combat, and the treatment of prisoners of war. In the present case, there was no apparent conflict between the provisions of the Convention and the applicable provisions of international humanitarian law in respect of the complaints made, with the possible exception of those under the substantive limb of Article 2 as per the incidental killing of civilians. The question of how Article 2 ought to be interpreted would be determined at the merits stage, having regard to the content of international humanitarian law.
Conclusion: preliminary objection dismissed (unanimously).
Article 35 § 1 of the Convention –
The Court underlined the novel nature of the present case. The vast majority of the Court’s case-law on the six-month rule and the exhaustion requirement concerned domestic incidents with remedies in the State where the incident had occurred and where the State whose authorities might ultimately be held responsible for failings under the Convention had not been in doubt. While Article 35 § 1 created an interplay between the six-month rule and the exhaustion of “domestic” remedies, it did not clarify whether and how this interplay was to be transposed to potential remedies outside the respondent State or to avenues which States themselves might wish to pursue at the international level prior to lodging an inter-State case with this Court. The Court considered those matters when determining the compliance of the applicant States with Article 35 § 1.
Exhaustion of domestic remedies –
As regards specifically the alleged abduction of the three groups of children and accompanying adults, the Ukrainian Government had contended that those incidents amounted to an administrative practice and, alternatively, to individual violations. The Court examined both arguments separately from the standpoint of the compliance with the exhaustion requirement. While this requirement was inapplicable to allegations of an administrative practice, it applied to inter-State applications denouncing violations allegedly suffered by individuals. The Court eventually found that the allegations of individual violations arising from those incidents were inadmissible for non-exhaustion of domestic remedies. In this regard, the investigative committee of the Russian Federation (“ICRF”) had concluded that there had been no forcible transfer of the children. Since the underlying facts (the crossing of the international border between Ukraine and Russia) had not been met with a blanket denial by the Russian authorities, the latter ought to have been afforded the opportunity by the Ukrainian Government to investigate their allegations and the evidence collected by them, notably in the context of a judicial appeal against the decision of the ICRF.
Conclusion: inadmissible (complaints about individual violations) (by majority); preliminary objection dismissed (allegations of administrative practices) (unanimously).
As regards the the downing of flight MH17, the Dutch Government had contended that their application did more than simply denounce individual violations and thus contained aspects of an administrative practice too. For the Court, however, the application did not complain of “general issues” but concerned the rights of identified individuals. Further, the rationale behind the exception to the exhaustion requirement in cases invoking an administrative practice was that any remedies would clearly be ineffective where the recurrence of the impugned acts was itself enabled by the inaction of the authorities. Such considerations did not apply to the single act of downing flight MH17. The allegations linked thereto had to be viewed therefore as allegations of individual violations to which the exhaustion requirement applied.
That said, the respondent Government had not shown that there had been an effective remedy in Russia available to the victims’ relatives. Firstly, unlike the allegations concerning the abduction of children, the complaint about the downing of the flight had been consistently met by the respondent Government with a blanket denial of any involvement whatsoever. Secondly, the respondent Government had not shown that the ICRF had exercised its jurisdiction to open an investigation into crimes committed abroad by unknown perpetrators. In this connection, it was noteworthy that a number of investigations had recently been opened into alleged war crimes committed by Ukrainian nationals during events in Ukraine since 24 February 2022, and none into those allegedly committed by Russian nationals despite extensive media coverage in this respect. Thirdly, the Russian authorities had been contacted on multiple occasions by victims’ relatives and had had ample legal possibilities, even in the absence of a specific request to the investigative authorities, to initiate an investigation into the allegation that Russian nationals had been involved in the downing of flight MH17. Their formalistic failure to do so corroborated the doubts as to the effectiveness of the remedy proposed in cases with a political dimension in which State agents were implicated in the commission of a crime, especially one condemned by the United Nations Security Council (see also a finding of a violation of the procedural aspect of Article 2 in the case of Carter v. Russia, concerning the high-profile poisoning of a Russian dissident abroad by State agents).
Conclusion: preliminary objection dismissed (unanimously).
Six-month time-limit –
Regarding the downing of flight MH17, in the absence of effective domestic remedies, the normal starting point for the running of the six-month time-limit had been the date of the incident itself, namely 17 July 2014. However, in this case such an approach would be incompatible with the interests of justice and with the objectives of that time-limit. First, the general approach had been developed in the context of cases where the identity of the State allegedly responsible for a violation of the Convention had been apparent from the date of the impugned act itself. By contrast, in this case there had been a real lack of clarity as to the precise circumstances surrounding the downing of the aircraft, including the identities of the perpetrators, the weapon used and the extent of any State’s control over the area where it had been downed. The allegations as to the Russian Federation’s role in its downing had been met by the respondent Government with a categorical denial of any involvement whatsoever in the actions of the separatists or the provision of a Buk-missile. Consequently, the Dutch Government could not be faulted for waiting for sufficiently credible and specific evidence before lodging their application.
Second, it would be artificial to ignore the investigative steps taken in the Netherlands and in the context of the JIT which had enabled the circumstances of the downing of the flight to be clarified. Those investigative steps had begun promptly and had continued regularly and diligently in a transparent and open manner in which the engagement of the authorities of the respondent State has been frequently and consistently sought. The investigation and the evidence gathered had been highly publicised. The criminal trial in The Hague against three Russian nationals and one Ukrainian had been conducted and the verdict had been handed down on 17 November 2022. While the criminal investigation carried out by the Dutch authorities with the assistance of the JIT could not been seen as a “domestic” remedy in respect of complaints lodged against the Russian Federation, it would indeed be unjust and contrary to the purpose of Article 35 § 1 if the effect of reasonably awaiting relevant findings of an independent, prompt and effective criminal investigation, in order to assist the Court in its own assessment of the complaints, was to render those complaints out of time.
Third, given the allegation that the State itself, at the highest level of government, had borne responsibility for the Convention breach alleged, it had also been relevant to consider the international remedy that had been pursued by the Dutch Government, namely the invoking of Russia’s international responsibility for internationally wrongful acts. This had led to trilateral meetings on State responsibility between Australia, the Netherlands and Russia until October 2020 when the respondent State had decided to stop participating. Although international law remedies were not mentioned in Article 35 § 1 and as a result the running of the time-limit in that Article was not linked to their exercise, the Court had already accepted that in some circumstances it might be appropriate to have regard to such remedies when assessing whether the obligation of diligence had been met. It was therefore legitimate for the Dutch Government to explore that opportunity which could potentially have resulted in further or renewed engagement by the Russian Federation and, ultimately, a settlement agreement.
The aim of the time-limit in Article 35 § 1 was to promote legal certainty and to ensure that matters were examined while they were still fresh, before the passage of time made it difficult to ascertain the pertinent facts and rendered a fair examination of the question at issue almost impossible. On the specific facts of the case, none of those considerations was undermined by the lodging of the application some six years after the aircraft had been downed. Nor had there been a delay in the referral of the complaints to this Court. Accordingly, in the exceptional circumstances of the case, the complaints had been lodged by the Dutch Government in time.
As regards the allegations of administrative practice, the six-month time-limit was applicable to those. The relevant complaints by the Ukrainian Government had been lodged in time.
Conclusion: preliminary objections dismissed (by majority - as to the downing of flight; and unanimously – as regards administrative practices).
Prima facie evidence –
Complaints concerning the downing of flight MH17 – The Court also concluded that there was sufficiently substantiated prima facie evidence to support the Dutch Government’s allegations under the substantive and procedural aspects of Article 2, under article 13, as well as under Article 3 as to the alleged suffering of the relatives of the victims of flight MH17 on account of its downing and aftermath. The question of whether the alleged suffering met the minimum threshold of severity to fall within the scope of Article 3 was joined to the merits.
Conclusion: admissible (by majority).
Alleged administrative practices – The Ukrainian Government had provided sufficiently substantiated prima facie evidence of both the repetition of acts in violation of the Convention and official tolerance, referring inter alia, to the evidence of the monitoring missions of the Organization for Security and Cooperation in Europe (OSCE) and the Office of the UN High Commissioner for Human Rights (OHCHR), of the Dutch Safety Board (DSB), the JIT, the Public Prosecution Service of the Netherlands, the witness statements and NGO reports. The Parliamentary Assembly of the Council of Europe had also expressed concern at the “prevailing climate of impunity and general lawlessness due to the absence of legitimate, functioning State institutions, and in particular access to justice”. Further, the sheer scale of the impugned acts reported was itself an indication of a tolerant environment. Accordingly, the Court declared admissible, the following complaints of administrative practices:
– in breach of Article 2, 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;
– in breach of Article 3, consisting of the torture of civilians and Ukrainian soldiers who were prisoners of war or otherwise hors de combat, including instances of sexual violence and rape, and inhuman and degrading conditions of detention;
– in breach of Article 4 § 2, consisting of forced labour;
– in breach of Article 5, consisting of abductions, unlawful arrests and lengthy unlawful detentions;
– in breach of Article 9, consisting of deliberate attacks on, and intimidation of, various religious congregations not conforming to the Russian Orthodox tradition;
– in breach of Article 10, consisting of the targeting of independent journalists and the blocking of Ukrainian broadcasters;
– in breach of Article 1 of Protocol No. 1, consisting of the destruction of private property including civilian homes and vehicles, the theft and looting of private and commercial property, and the unlawful appropriation of private property without compensation;
– in breach of Article 2 of Protocol No. 1, consisting of the prohibition of education in the Ukrainian language;
– in breach of Article 14, taken in conjunction complaints under the above Articles, consisting of the targeting of civilians of Ukrainian ethnicity or citizens who supported Ukrainian territorial integrity (all unanimously); and
- in breach of Articles 3, 5 and 8 of the Convention and Article 2 of Protocol No. 4 in respect of the alleged abduction and transfer to Russia of three groups of children and accompanying adults (by majority).
The Court declared, unanimously, inadmissible the complaint of an administrative practice in breach of Article 11 (restrictions on and targeting of political organisations supporting Ukrainian territorial integrity and their members) for lack of sufficiently substantiated prima facie evidence of the repetition of acts after February 2015 (six months before the lodging of the relevant application).
The Court also rejected as incompatible ratione materiae the Ukrainian Governent’s complaint about the inability of citizens residing in the territory under Russian control to vote in the Ukrainian presidential elections, Article 3 of Protocol No. 1 not being applicable to the latter (unanimously).
(See also Cyprus v. Turkey [GC], 25781/94, 10 May 2001; Ilaşcu and Others v. Moldova and Russia [GC], 48787/99, 8 July 2004, Legal Summary; Al-Skeini and Others v. the United Kingdom [GC], 55721/07, 7 July 2011, Legal Summary; Ukraine v. Russia (re Crimea) (dec.) [GC], 20958/14 and 38334/18, 16 December 2020, Legal Summary; Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal Summary; Carter v. Russia,. 20914/07, 21 September 2021, Legal Summary)
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