A Ray of Light in Dark Times: On the Importance of the Case of Ukraine and the Netherlands v. Russia

Posted on: 3 June 2024 by Alla Tymofeyeva in Blog

Dr Alla Tymofeyeva visited the School of Law and Social Justice from Charles University (Prague), through the International Visiting Fellowship Programme.

In early 2022, Kanstantsin Dzehtsiarou and Vassilis Tzevelekos wrote about the return to dark times. The authors applied the phrase “dark hours” to describe the war in Ukraine and the threat to the European Convention on Human Rights (ECHR, the Convention) values, which came with it. In my opinion, the forthcoming judgment in the case of Ukraine and the Netherlands v. Russia can become a ray of light in these dark times. I argue that the importance of this case goes far beyond the parties to the dispute and may impact thousands of individuals, especially those influenced by the ECtHR’s moratorium on examining individual applications introduced on 17 December 2018.

Before discussing the case of Ukraine and the Netherlands v. Russia, I would like to provide a brief overview of all ten inter-state applications submitted by Ukraine against Russia. This overview is necessary to understand the origins of the current case, as it is a combination of multiple inter-state applications submitted by Ukraine against Russia, together with a separate application of the Netherlands against Russia. Additionally, over the past ten years of war (2014-2024), the ECtHR has received thousands of individual applications. As of December 2018, the ECtHR registered over 4,000 individual applications related to the events in Crimea or the hostilities in Eastern Ukraine. As of April 2024, there were almost 7,400 individual applications before the Court which appear to be related to the events in Crimea, eastern Ukraine and the Sea of Azov and Russia’s military operations on the territory of Ukraine since 24 February 2022. The outcome of these individual cases is dependent on the judgment of the ECtHR in the Ukraine and the Netherlands v. Russia, which will be explained in the final part of this contribution.

1. Overview of the inter-state applications submitted by Ukraine against Russia

The table below[1]  presents a short overview of the ten applications filed by the Ukraine against the Russian Federation with regard to war in Ukraine. This war can be divided into two main phases: 1) the events, which took place from the beginning of February 2014 until 24 February 2022, and 2) the events that began on 24 February 2022 and continue at present. Ukraine has filed nine complaints against Russia in relation to the first phase of the conflict (4 of which are currently pending) and 1 complaint relating to the second phase of the conflict (on 28 February 2022). By the decision of the Grand Chamber of 17 February 2023,  the application concerning the second phase of the conflict has been joined to the case Ukraine and the Netherlands v. Russia.

The table presents a list of more than ten cases, including some that have been renamed and joined together. This is due to the fact that some cases have been renamed and joined together during the proceedings, while others remained unchanged. The first ten rows list the cases Ukraine against Russia, numbered from I to X. The next three rows include the new titles of the cases that have been renamed and joined together.

The table demonstrates that the ten applications lodged by Ukraine against Russia for the past decade went through a number of transformations. Already on 1 September 2015, the application in the case of Ukraine v. Russia (III) was struck out of the Court’s list of cases (see grey colour) as the Government of Ukraine had informed the ECtHR that they did not wish to pursue the application. This was because an individual application (no. 49522/14) concerning the same subject matter was already pending before the ECtHR. The cases of Ukraine v. Russia (V) and Ukraine v. Russia (VII) were merged into a new case titled Ukraine v. Russia (re Crimea) as they both concern the events in Crimea (see green colour). In 2018, all complaints related to eastern Ukraine were consolidated into a single case no. 8019/16 and the application was given the new name Ukraine v. Russia (re Eastern Ukraine). It was marked in blue. Later, this newly established case was united with the case of Ukraine and the Netherlands v. Russia.

As of now, there are only four cases of Ukraine against Russia pending before the ECtHR. These are the applications listed in orange. None of them, to date, have been decided on the merits. The ECtHR in its decisions of 14 January 2021 and 30 November 2022 in the cases of Ukraine v. Russia (re Crimea) and Ukraine and the Netherlands v. Russia respectively declared the applications partly admissible. By this, the ECtHR acknowledged that Russia exercises jurisdiction over Crimea and certain territories in eastern Ukraine. In the second part of this contribution, I will offer a brief description of the case of Ukraine and the Netherlands v. Russia. The significance of this case will be explored in the final part of this text.

2. The case of Ukraine and the Netherlands v. Russia

The inter-state case of Ukraine and the Netherlands v. Russia is one of the most complex and politically momentous cases ever to be heard by the ECtHR. It concerns complaints regarding the conflict in eastern Ukraine involving pro-Russian separatists that started in spring 2014 and continued until 16 September 2022.[8] The Ukrainian Government raised complaints about attribution of conduct of the separatists from so-called the Donetsk People’s Republic (DPR) and Lugansk People’s Republic (LPR), as well as certain acts by members of the Russian military to Russian Federation. The Netherlands Government complained about the shooting down of Malaysia Airlines flight MH17 in eastern Ukraine on 17 July 2014, resulting in the deaths of 298 people, including 196 Dutch citizens.

On 30 November 2022,[9] the ECtHR issued its admissibility decision in this case.[10] It ruled that the complaints concerning certain events which took place in the territory under separatist control fall within the jurisdiction ratione loci of Russia within the meaning of Article 1 of the Convention. The Court declared admissible, without prejudging the merits, the complaint of an administrative practice in respect of the alleged abduction and transfer to Russia of three groups of children and accompanying adults. It also held that the complaint concerning the downing of Malaysian Airlines flight MH17 is admissible. However, the ECtHR clearly dismissed the complaint regarding the 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 these acts after February 2015 to comply with six months before the lodging of the relevant application. It also rejected as incompatible ratione materiae the Ukrainian Government’s complaint about the inability of citizens residing in the territory under Russian control to vote in the Ukrainian presidential elections.

This decision of the ECtHR did not cover the events, which took place from 24 February 2022 until 16 September 2022, as the decision to join inter-State application Ukraine v. Russia (X) to the inter-state applications in Ukraine and the Netherlands v. Russia was rendered by the Grand Chamber only on 17 February 2023. The admissibility of these complaints will be subject-matter of the forthcoming hearing scheduled for 12 June 2024 and the subsequent ruling.

The main issue with regard to the merits of the case will concern the application of Article 2 (right to life) and the restrictions imposed by the ECHR with regard to death in result of armed conflicts, which could be in theory, consistent with the rules of international humanitarian law (IHL). The ECtHR will have to analyse the famous IHL principles of humanity, distinction, proportionality and military necessity and decide on their applicability to each of the complaints raised with regard to Article 2 of the ECHR. The complaints also cover issue of the torture of civilians and Ukrainian soldiers who were prisoners of war (Article 3), use of forced labour of the Ukrainian prisoners of war and civilians for the digging of the tranches (Article 4), abductions, kidnapping for ransom, unlawful arrests and lengthy detentions (Article 5), restrictions on freedom of expression (Article 10), destruction of private property (Article 1 of Protocol No.1). This list is rather illustrative as the complaints included in at least five[11] initial applications (Ukraine v. Russia I, II, IV, IV and X) are very wide-ranging and cover different areas and time periods.

The interesting fact is that 26 CoE member states[12]  were granted leave to intervene in this case. The more surprising is the fact that, probably for the first time in the history of the ECHR, the same state (the Netherlands) in the same case plays the role of the applicant and the third party at the same time. All 26 states have submitted ‘joint’ intervention. Marco Milanovic suggests that the Netherlands that took the lead in drafting the joint submission as its style is very similar to the supplemental Dutch brief. Leaving aside the complaints of the applicant states and the submissions of amici curiae, let us focus on why this case is so significant.

3. The importance of the first judgment in the inter-state dispute between Ukraine and Russia

For the first time in its history, the ECtHR will rule in a case involving two CoE member states against one state that is not a member of the Council of Europe and not a party to the ECHR. Additionally, it will be the first inter-state case where the respondent state is not represented by a judge elected in respect of the party to the ECHR, nor by its Government Agent. To some extent, the proceedings in issue could be seen as a trial in absentia. On the other hand, the decision of the ECtHR to move forward with Russian cases has its logic, as otherwise it would ended up as the WTO Appellate Body being blocked by the United States. I will not discuss whether the decision of the ECtHR to ‘substitute’ a judge in respect of Russia by one of the sitting judges influences the legacy of Russian cases, and leads to fact-finding and compliancy challenges. My focus will be on the benefits of the judgement in the case of Ukraine and the Netherlands v. Russia for the three following categories of persons: 1] victims in the present case; 2] persons influenced by the armed conflicts in the other CoE member states; 3] individuals affected by the ECtHR plan of 17 December 2018, which has led to freezing of examination of certain individual cases.

With regard to the first category, for the moment, we cannot anticipate, how the ECtHR will decide on the alleged breaches of the rights of the victims of the human rights violations raised in the case of Ukraine and the Netherlands v. Russia. Even if the judgment will lead to the awarding of just satisfaction, it is very uncertain that Russia is ready to comply with it. But, what we can definitely expect is that the judgment will provide the authoritative statement on how the ECHR should apply extraterritorially in armed conflicts in future cases. It means that the forthcoming judgment could be also of importance for other member states apart from Ukraine, but also for the future victims of similar violations in the other CoE member states and their representatives. The second category of interested persons is likely to be the vastest as the situation in Ukraine to some extent is similar to the other armed conflicts in Europe, which concern the pending cases before the ECtHR, such between Georgia and Russia, between Armenia and Azerbaijan, and even the Northern Ireland Troubles reflected in the new application in the case of Ireland v. the United Kingdom (III) lodged on 17 January 2024.

The last third category is the least known and probably the most important. On 17 December 2018, the ECtHR adopted a special plan for processing of thousands of applications from individuals who have raised complaints against Ukraine or Russia, or both countries, in relation to the conflict in Eastern Ukraine. According to this plan, the ECtHR decided to freeze examination of these cases until it rules on jurisdiction in the case of Ukraine v. Russia (re Eastern Ukraine) (application no. 8019/16), which was joined by the Grand Chamber decision of 27 November 2020 to the case of Ukraine and the Netherlands v. Russia. Regardless of what conclusions the ECtHR reaches in this case, the judgment in issue will free the ECtHR’s Registry hands and allow it to proceed with thousands of claims from estimated victims of human rights violations, which took place in eastern Ukraine starting from 2014. After ten years, they finally have a chance to obtain justice in their cases. The further study could address the issue on how the ECtHR will proceed with this group of cases: ‘business as usual’ or ‘denial of justice’.

Conclusion

By this small input, I would like to attract attention of a wider public to the forthcoming hearing in this case, scheduled for 12 June 2024. The case the Ukraine and the Netherlands v. Russia will likely to become a milestone in the history of inter-state proceedings under Article 33 of the ECHR. It concerns many important issues starting from the intersection between humanitarian law and human rights, going through extraterritoriality in armed conflicts,[13] and ending up with preserving the ECHR’s values. Setting aside any predictions on Russia’s compliance with the judgement in this case, the most urgent and important this case will be for the applicants influenced by the ECtHR’s plan of 17 December 2018. Regardless the ECtHR’s conclusions in the case of Ukraine and Netherlands v. Russia, the fact that the judgment is rendered in the inter-state case between Russia and Ukraine will terminate the moratorium on examining pending individual complaints, and the ECtHR may start to deliver its judgments in the adjourned cases relating to the events in eastern Ukraine.

Footnotes

[1] The information in this table is not absolutely correct as many of the cases were divided or joined into a number of new cases, and often obtained a new application number. Unfortunately, most of them are not available to the public in the HUDOC database. The research of the author is primarily based on the ECtHR’s press releases.

[2] The date is not chorological. Unfortunately, the case is not available in HUDOC. The information is taken from the Press Release of the ECtHR titled Grand Chamber to examine four complaints by Ukraine against Russia over Crimea and Eastern Ukraine as of 9 May 2018.

[3] Ukraine v. Russia (re Crimea) (dec.) [GC], nos. 20958/14 and 38334/18, § 9, 16 December 2020.

[4] Ibid.

[5] The author was not able to find the date of introduction of this application, but she believes that there is a mistake in the Press Release of the ECtHR titled Grand Chamber to examine four complaints by Ukraine against Russia over Crimea and Eastern Ukraine as of 9 May 2018, where the ECtHR supposedly substituted the cases IV and VI.

[6] Ukraine and the Netherlands v. Russia (dec.) [GC], app. nos. 43800/14, 8019/16 and 28525/20, para. 22, 30 November 2022.

[7] Ibid.

[8] On 16 September 2022, the Russian Federation ceased to be a High Contracting Party to the ECHR in accordance with the Resolution CM/Res(2022)3 on legal and financial consequences of the cessation of membership of the Russian Federation in the Council of Europe, adopted by the Committee of Ministers on 23 March 2022 at the 1429bis meeting of the Ministers‘ Deputies. In line with the Resolution of the ECtHR of 22 March 2022, the Court is authorised to deal with all the applications directed against Russia in relation to alleged violations of the Convention that occurred until 16 September 2022.

[9] The application was declared partially admissible on 30 November 2022 in a decision that was delivered on 25 January 2023.

[10] Ukraine and the Netherlands v. Russia (dec.) [GC], app. nos. 43800/14, 8019/16 and 28525/20, 30 November 2022.

[11] Some of the complaints within these initial applications were divided into separate cases, while the others were grouped together.

[12] Austria, Belgium, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

[13] Berkes, Antal. International Human Rights Law Beyond State Territorial Control, CUP, 2021.