FUTURE CLAIMS AGAINST RUSSIA: KEY IMPLICATIONS OF THE UKRAINE AND THE NETHERLANDS V. RUSSIA DECISION

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.^[1]

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

The case of Ukraine and the Netherlands v. Russia joins three sets of claims concerning the conflict in eastern Ukraine since 2014:

• claims by Ukraine concerning patterns of conduct constitutive of violations of human rights in eastern Ukraine;
• claims by Ukraine concerning the abduction of children in eastern Ukraine; and
• claims by the Netherlands in relation to the downing of Malaysia Airlines flight MH17 on July 17, 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.^[2]

The Court’s Findings on Russia’s Effective Control over Eastern Ukraine

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”:

• The Court was satisfied beyond reasonable doubt of the existence of a Russian military presence in eastern Ukraine from April 2014. However, as it was not possible to assess the scale of that presence, the Court did not consider it “established beyond reasonable doubt” that Russia exercised effective control over the relevant territory “solely by virtue of the military presence of [Russia’s] own de jure soldiers”.^[3] Previously, in the case of Ukraine v. Russia (Re Crimea), the Court had found that Russia exercised effective control over Crimea based on military presence as of February 27, 2014.^[4]
• As regards military support, the Court found that Russia had exerted significant influence on the military strategy of the “DPR” and “LPR” separatists, that Russia had provided their purported administrations with weapons and military equipment (including the missile used to shoot down flight MH17) on a significant scale, and that the Russian military had also provided artillery cover. The Court also found that Russian build-up of troops at the eastern border constituted another form of military support.
• The Court identified clear evidence of political support to the “DPR” and “LPR”, notably due to Russia’s decisive role in the appointment of individuals to leadership posts, Russia’s validation of the purported “referendums” and “elections” in these regions, and Russia’s adoption of decrees recognizing official documents issued by the “DPR” and the “LPR”, such as passports.
• Lastly, the Court found that the evidence consistently showed significant economic support from Russia to the separatist entities. The Court also noted that there was no evidence of any alternative source of funding for these entities.

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”.^[5]

Links with the Decision of the District Court of The Hague in the Criminal Case on the Downing of Malaysia Airlines Flight MH17

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”.^[6]

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.

Key Implications for Claims Against Russia

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”.^[7] 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.^[8] 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.