February 01, 2023
On January 25, 2023, the Grand Chamber of the European Court of Human Rights declared the claims in the case of Ukraine and the Netherlands v. Russia partly admissible.
The Court’s conclusion that Russia effectively controlled the territory of eastern Ukraine held by the separatists of the self-proclaimed “Donetsk People’s Republic” (“DPR”) and “Luhansk People’s Republic” (“LPR”) from May 11, 2014, until at least January 26, 2022, has key implications for entities and individuals considering investment treaty and human rights claims against Russia in relation to Russia’s actions in Ukraine as of 2014.
The case of Ukraine and the Netherlands v. Russia joins three sets of claims concerning the conflict in eastern Ukraine since 2014:
Russia objected to the admissibility of these claims, including by denying it had effective control over the areas in the hands of the “DPR” and “LPR”, where the relevant acts and omissions were alleged to have taken place.
The Court largely rejected Russia’s arguments and declared most claims admissible, having found that Russia had spatial jurisdiction based on effective control over the relevant areas. The decision is final and will be followed by a Grand Chamber judgment on the merits.
Pursuant to Article 1 of the European Convention on Human Rights (“ECHR”), the High Contracting Parties must secure to “everyone within their jurisdiction” the rights and freedoms defined in the Convention.
As the violations of the ECHR are alleged to have occurred outside Russia’s internationally recognized borders, the Court considered, as a condition of the admissibility of the claims, whether Russia had spatial jurisdiction over the relevant areas.
Following an extensive assessment, the Court found that from May 11, 2014 (the date of the purported separatist “referendums”) until at least January 26, 2022 (the date of the admissibility hearing), Russia effectively controlled the areas in the hands of the “DPR” and “LPR”, such that they fell within Russia’s spatial jurisdiction for purposes of the ECHR.
The Court’s conclusion rested on multiple findings regarding Russia’s military presence in eastern Ukraine and Russian support to the “DPR” and “LPR”:
Critical to the above was not only the extensive evidentiary record but also the Court’s decision to draw a number of adverse inferences from Russia’s conduct during the proceedings. The Court referred in this regard to a “distinct lack of frankness and transparency” in Russia’s written submissions, and condemned Russia’s lack of “constructive engagement”.
On November 17, 2022, the District Court of The Hague rendered its verdict in a criminal case regarding Malaysia Airlines flight MH17, convicting three individuals to life imprisonment for firing a missile at the aircraft, causing the death of all 298 persons on board.
In its decision, the District Court examined whether the incident had occurred during an international armed conflict, such that international humanitarian law rules on immunity may be applicable. In this context, the District Court assessed whether Russia had “overall control” over the “DPR”.
The District Court concluded that Russia had overall control of the “DPR”, based on evidence that: (i) “DPR” leaders had close ties and regular contacts with Russia; (ii) Russia supported the “DPR”, through the regular provision of weapons, troops, military training and financing; (iii) Russia acted as coordinator of and issued instructions to the “DPR”; and (iv) Russia had directly participated in the conflict by means of artillery shelling on Ukrainian territory from Russia.
These factual findings are very similar to those of the European Court of Human Rights.
Nonetheless, due to Russia and the suspects’ refusal to acknowledge Russian control over the “DPR”, the District Court held that the suspects were not eligible for any immunity that would have derived under the rules of international armed conflict.
We expect that these decisions will spur new claims under investment treaties and the ECHR.
As Russia ceased to be a High Contracting Party to the ECHR on September 16, 2022, the European Court of Human Rights is only competent to consider applications against Russia concerning conduct having occurred until that date. The findings of the Court on effective control over the regions held by the “DPR” and the “LPR” will likely facilitate the admissibility of ECHR claims in relation to acts or omissions attributable to Russia in those areas, until September 16, 2022.
Further, persons who qualify as investors under Russian investment treaties may also seek redress against Russia before arbitral tribunals constituted in accordance with the dispute settlement clauses of these treaties. Some bilateral investment treaties, such as the Russia-Ukraine BIT, apply to investments within a Contracting Party’s “territory”. Arbitral tribunals have found that the term “territory” in the Russia-Ukraine BIT includes “areas over which the Contracting Parties exercise jurisdiction and de facto control, even if they hold no lawful title under international law”. Therefore, investors seeking to demonstrate control by Russia of parts of Ukraine, including since the Russian invasion of February 24, 2022, will find substantial support in the methodology and factual findings of the European Court of Human Rights and of the District Court of The Hague.
On a final note, on October 4, 2022, following the events considered in the above-discussed decisions, Russia purported to formally annex the areas of the “DPR” and “LPR”, along with the regions of Kherson and Zaporizhzhia. Russia will find it difficult to reconcile this assertion of sovereignty with arguments that it lacks territorial jurisdiction over the relevant regions.
Special thanks to Vitaliy Zomko for his contributions to this publication.
 European Court of Human Rights, Case of Ukraine and the Netherlands v. Russia (applications nos. 8019/16, 43800/14 and 28525/20), Decision, January 25, 2023.
 Residual admissibility issues will also be considered during the merits stage. In relation to ongoing alleged breaches, the Court may be called upon to assess whether Russia’s jurisdiction over eastern Ukraine continued after January 26, 2022. Further, questions of admissibility of claims regarding alleged conduct outside Russia’s spatial jurisdiction were postponed to the merits.
 European Court of Human Rights, Case of Ukraine and the Netherlands v. Russia (applications nos. 8019/16, 43800/14 and 28525/20), Decision, January 25, 2023, para. 611.
 European Court of Human Rights, Case of Ukraine v. Russia (Re Crimea) (applications nos. 20958/14 38334/18), Decision, December 16, 2020, paras. 335, 349.
 European Court of Human Rights, Case of Ukraine and the Netherlands v. Russia (applications nos. 8019/16, 43800/14 and 28525/20), Decision, January 25, 2023, paras. 456, 459.
 District Court of The Hague, Judgment of November 17, 2022 in Case No. ECLI:NL:RBDHA:2022:14039, section 220.127.116.11.3 and conclusion in fine.
 See Stabil LLC and others v. The Russian Federation, PCA Case No. 2015-35, Award on Jurisdiction, June 26, 2017, para. 146 (“On this basis, the Tribunal concludes that the ordinary meaning of the term ‘territory’ includes areas over which the Contracting Parties exercise jurisdiction and de facto control, even if they hold no lawful title under international law”).
 Ukraine does not recognize the “DPR” and the “LPR” as sovereign States. Nor does it recognize the purported annexation by Russia of any part of Ukraine’s internationally recognized territory. On October 12, 2022, the General Assembly of the United Nations passed a resolution on the territorial integrity of Ukraine, notably condemning Russia’s attempted illegal annexation of the Donetsk, Kherson, Luhansk and Zaporizhzhia regions of Ukraine and calling on all States, the UN and international organizations not to recognize any of Russia’s alteration of the status of these regions of Ukraine.