ECtHR holds Russia accountable for widespread and flagrant abuses of human rights arising from the conflict in Ukraine since 2014
In the case of Ukraine and the Netherlands v. Russia the European Court of Human Rights held Russia accountable for widespread and flagrant abuses of human rights arising from the conflict in Ukraine since 2014, in breach of the European Convention.
The Court found that Russia was responsible for repeated human-rights violations over a period of more than eight years. This included indiscriminate military attacks; summary executions; torture, notably rape as a weapon of war; unlawful and arbitrary detentions; intimidation and persecution of journalists and religious groups; looting and destruction of private property; and the organised removal of children to Russia and their adoption there.
The Court also found that Russia was responsible for violating the right to life by shooting down flight MH17 and had added to the profound suffering of the crash victims’ next of kin by being uncooperative and obstructive in the context of international efforts to uncover the truth.
The case Ukraine and the Netherlands v. Russia (applications nos. 8019/16, 43800/14, 28525/20 and 11055/22) concerned the conflict that began in eastern Ukraine in 2014 following the arrival in the Donetsk and Luhansk regions of pro-Russian armed groups, and escalated after Russia’s full-scale invasion of Ukraine beginning on 24 February 2022.
It also concerned the shooting down of flight MH17 over eastern Ukraine on 17 July 2014, killing all those on board, many of whom were Dutch nationals. Ukraine alleged repeated violations of human rights by Russia, while the Kingdom of the Netherlands alleged violations of the Convention by Russia as a result of the downing of flight MH17.
In Grand Chamber judgment the European Court of Human Rights held unanimously that, in respect of the conflict in Ukraine between 11 May 2014 – when the hostilities started – and 16 September 2022 – when Russia ceased to be a party to the European Convention on Human Rights – there had been patterns of violations of: Articles 2 (right to life), 3 (prohibition of torture, inhuman or degrading treatment), 4 § 2 (prohibition of forced labour), 5 (right to liberty and security), 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion), 10 (freedom of expression), 11 (freedom of assembly and association), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the European Convention and Articles 1 (protection of property) and 2 (right to education) of Protocol No. 1 to the Convention.
The Court underlined that the nature and scale of the violence in Ukraine and the ominous statements from Russia concerning Ukraine’s right to exist had threatened peace in Europe. It said that “In none of the conflicts previously before [it had] there been such near universal condemnation of the ‘flagrant’ disregard by the respondent State for the foundations of the international legal order established after the Second World War.”
The Court found that Russia had had jurisdiction, giving rise to Convention obligations, in respect of the territory that it had occupied in Ukraine. It also concluded, unanimously, that Russia had exercised authority and control over individuals affected by its military attacks across Ukraine and that these individuals had therefore been within its jurisdiction. Russia was responsible for acts and omissions of the Russian military and of the separatist entities in eastern Ukraine.
Taken as a whole, the vast volume of evidence before the Court presented a picture of interconnected practices of manifestly unlawful conduct by agents of the Russian State (Russian armed forces and other authorities, occupying administrations, and separatist armed groups and entities) on a massive scale across Ukraine.
This pattern or system of violations included: indiscriminate military attacks; summary executions of civilians and Ukrainian military personnel hors de combat; torture, including the use of rape as a weapon of war, and inhuman and degrading treatment; forced labour; unlawful and arbitrary detention of civilians; unjustified displacement and transfer of civilians and their screening, involving invasive and abusive security checks (so-called “filtration” measures); intimidation, harassment and persecution of all religious groups other than adherents of the Ukrainian Orthodox Church of the Moscow Patriarchate; intimidation and violence against journalists, blocking of Ukrainian and foreign broadcasters and new “laws” prohibiting and penalising the dissemination of information in support of Ukraine; forcible dispersal by the Russian military of peaceful protests in occupied towns and cities; destruction, looting and expropriation without compensation of private property; suppression of the Ukrainian language in schools and indoctrination of Ukrainian schoolchildren; transfer to Russia, and in many cases, the adoption there of Ukrainian children; and, discrimination on grounds of political opinion and national origin.
The Court also held, unanimously, that there had been violations of Articles 2, 3 and 13 in application no. 28525/20 concerning the downing of flight MH17. It referred to the facts as established by the comprehensive investigation carried out by an international joint investigation team (known as the JIT) and a first-instance criminal court in the Hague. Russia had failed to take any measures to ensure accurate verification of the target of the missile or to safeguard the lives of those on board, showing a cavalier attitude to civilians at risk from its hostile activities.
It had also failed to carry out an effective investigation into the downing and had failed to cooperate with the JIT, disclosing inaccurate or fabricated information and adopting an obstructive approach to attempts to uncover the cause and circumstances of the crash. The next of kin of the crash victims had suffered profound grief and distress on account of the killing of their loved ones and the aftermath of the crash.
Because of Russia’s refusal to arrange for the crash site to be secured, it took eight months to complete the recovery of the bodies. Some next of kin had had to bury the incomplete bodies of their relatives; in some cases body parts had been returned to them after the burial had taken place. In two cases, the victims’ bodies had never been recovered.
The Russian authorities’ continued denial of involvement and their failure to carry out an effective investigation had prolonged the agonising wait for answers of the next of kin and had aggravated their suffering. The character and dimension of their continuing suffering had been sufficiently severe to amount to inhuman treatment.
Lastly, the Court held, unanimously, that: Russia had failed to comply with its obligations under Article 38 (obligation to furnish necessary facilities for the examination of the case) of the Convention; the question of Article 41 (just satisfaction) was not yet ready for decision and adjourned it, disjoining application no. 28525/20 (the downing of flight MH17) from the other three applications to allow for the examination of the just satisfaction claims separately; and under Article 46 (binding force and implementation of judgments), Russia had to: release without delay all those deprived of their liberty before 16 September 2022 in occupied territory and still in the custody of the Russian authorities; and, without delay cooperate in the establishment of an international and independent mechanism to identify all children transferred from Ukraine to Russia or Russian-controlled territory before 16 September 2022, to restore contact between children and their families or legal guardians and ultimately reunite them. (source:echr.coe.int)
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