On January 23, the Parliamentary Assembly of the Council of Europe (PACE) held a difficult discussion for Ukraine. First in the committee, and then in the plenary hall, Western European deputies strongly opposed the fact that the PACE’s decision should mention the beginning of Russia’s armed aggression against Ukraine in 2014.
“The Council of Europe’s position is that the Russian invasion began in 2022,” Belgian MP Christophe Lacroix sincerely assured the audience.
Back then, Ukraine did manage to win, but it was hardly a convincing victory.
The reference to 2014 was approved with 47 votes in favor, 43 against, and 12 abstentions. About 20 other attendees decided not to vote for the amendment at all, so as not to show what position they held. That is, even after explanations and persuasion from fellow Ukrainians, their claim that the war has been going on since 2014 was supported by far less than half of the European parliamentarians.
This story proves how important the ECHR’s (European Court of Human Rights) decision is, which appeared the very next day.
On January 25, the European Court of Human Rights issued an interim verdict in the so-called “big Donbas case.” This decision was an absolute, undeniable victory for Ukraine.
The court cleared up the question of Russia’s role in the hybrid aggression in eastern Ukraine. It confirmed that since April 2014, Russia has been carrying out a military invasion of Donetsk and Luhansk regions; since May, Russia’s control over the occupied territories has become absolute; in the summer, Russia moved to full-scale deployment of troops to Donbas, as well as Russia bears full and unlimited responsibility for what happened in the occupied territories.
It is now legally proven that Russia’s war with Ukraine has been going on for almost nine years. Disputes like the one that took place in PACE no longer make sense.
In addition, the Court’s decision will have a real financial impact on many Ukrainian businesses, and sometimes on ordinary citizens affected by the Russian aggression in Donbas.
This article explains the content and consequences of the historic European Court of Human Rights’ judgment with the help of questions and answers.
What this case is about?
In short and simplified terms, the ECHR is considering a collective complaint from two states (Ukraine and the Netherlands) against a third state (the Russian Federation) that, after the occupation of Donbas in 2014, it systematically violated human rights in these territories or failed to investigate the violations committed there, and how the occupying power should be held responsible for the events in this territory.
In order to pass judgment on this complaint, the Court had to answer a whole range of questions. Was this territory of Ukraine occupied? Is it controlled by Russia? What part of Ukraine does Russian control extend to? Is Russia responsible for crimes committed in this part of Ukraine and for which crimes?
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The vast majority of the “charges”, i.e., the episodes of the complaint, were brought by the Ukrainian government. The Netherlands became involved in this joint case because of the MH17 tragedy, i.e. the downing of an airliner flying from Amsterdam by a Russian Buk (missile system). The Netherlands joined the lawsuit only in 2020, and this was to Ukraine’s advantage: both because of the involvement of strong Dutch lawyers and because European judges are also human, and the emphasis on the MH17 tragedy made the case closer to them.
However, it was important to prove Russia’s responsibility with facts in order to win. Emotions alone are not enough. Therefore, official Kyiv submitted to Strasbourg an impressive array of evidence – questioning transcript, video recordings, intelligence, etc. The textual description of the evidence base attached to the court’s decision alone took up more than 800 pages!
Why do we say that Ukraine has won if this is an “interim” judgment?
Formally, the European Court of Human Rights has not yet completed the trial. The final judgment will take several more years. The Court will have to determine which articles of the European Convention on Human Rights Russia has violated. It is possible that the Court will also order payments (the so-called “just satisfaction”) for these violations – but it is too early to say, as Ukraine has not even filed specific claims for compensation.
However, in this particular case, the current, “interim” stage was the main one.
Because there is no doubt that the killings, abductions, torture, etc. that took place in large numbers in Donbas constitute a violation of human rights. It is unlikely to be difficult to prove this with the amount of evidence available to Ukraine and the affected Ukrainians if only the Court proceeds to trial on the merits.
Instead, the key challenge was to prove that it was Russia that should be held responsible for the violations, despite the fact that they were committed on Ukrainian territory.
In simplified terms, liability for mass crimes on the territory of another state arises when the Court proves that the territory is occupied and the defendant state is the occupier (in ECHR terminology, this is called “exercising effective control over such territory”).
The ECHR became the first international court to legally prove Russia’s occupation of part of Donbas since 2014 based on evidence submitted by Ukraine. Until now, decisions on this issue were made only by political bodies, which also did so under the influence of Ukrainians or with their votes (for example, the votes of the Ukrainian delegation were decisive for the PACE decision mentioned at the beginning of the article).
And the details of the ECHR’s decision make Ukraine’s victory in this process even more significant. Even the Ukrainian government officials responsible for this trial admitted in a conversation with European Pravda (Ukrainian new website) that they did not expect such a victorious decision.
So what was the Court’s judgment? Briefly about the main points
The judgment of the European Court in the “big Donbas case” is a large-scale document, 230 pages long, so it is worth highlighting six main elements:
- recognition of armed aggression;
- determination of the date of the beginning of the Russian occupation;
- recognition of Russian control over the occupied territory;
- determination of the territories of which Russia is responsible for violations;
- permission to prove Russia’s guilt for the consequences of shelling of civilian objects on the Ukrainian side of the contact line;
- confirmation that Russia’s violations (from killings and torture to restrictions on education) were systemic, not isolated.
According to each of these points, we can talk about Kyiv’s victory.
So, firstly, the ECHR has legally confirmed that in the spring of 2014, Russia carried out armed aggression against Ukraine in the Donetsk and Luhansk regions, and by the end of the summer, a large-scale invasion began, which Russia still denies.
“The Grand Chamber finds it established beyond reasonable doubt that Russian troops have been active in Donbas since April 2014. Russian soldiers have fought as part of armed groups, and officers have led separatist armed groups from the beginning. At the latest, in August 2014, in the context of the Battle for Ilovaisk, there was a large-scale deployment of Russian troops (on Ukrainian territory),” the ECHR decision states.
Based on a large amount of evidence and explanations (we will return to them in more detail later), the Court found that from May 11, 2014, Russia gained full and absolute control over the territory controlled by the “DPR” and “LPR”. By the way, throughout the judgment these abbreviations are used in quotation marks – the Court emphasizes that it does not consider these structures to be real.
“The available evidence confirms that at the time of the “referendums” on May 11, 2014, the separatists’ activities were generally directed and coordinated by the Russian Federation,” the court’s judgment states.
Consequently, from that date onwards, the territory not controlled by Ukraine is considered to be under the control (occupation) of the Russian Federation.
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It should be emphasized that the choice of May 11 as the starting point does not deny that the armed aggression and occupation in Donbas began even earlier, and this date relates specifically to Russia’s legal responsibility for the occupied territory. We will explain in detail later why this date was chosen and what impact it will have, given that Ukraine requested that April 30 be recognized as the starting point.
Another very important element of the judgment was the establishment of the so-called “administrative practice,” that is, the systematic violation of human rights by the Russian occupation administration in Donbas. The Court confirmed this practice in most of the articles complained of by Ukraine. The ECHR considers the proven systematic nature of Russian violations during:
- killings and battery to death of civilians and Ukrainian prisoners of war;
- torture of civilians and prisoners of war, including sexual violence, rape, inhuman and degrading conditions of detention;
- organization of forced labor;
- abductions, illegal arrests and prolonged unlawful detention;
- attacks on religious grounds;
- persecution of journalists and blocking of Ukrainian broadcasters;
- destruction of private property, theft and looting, and unlawful appropriation of private property without compensation;
- prohibition of education in the Ukrainian language;
- persecution of persons of Ukrainian nationality or citizens who supported the territorial integrity of Ukraine.
Now the Ukrainian complaint will be considered for all episodes since May 11, 2014, which fall under these articles.
The ECHR’s decision on the territorial limits of legally proven control of the Russian Federation and the crimes for which the Russian authorities are responsible deserve special attention. This will be discussed in the next section.
Borders of Russian occupation
When the ECHR began to consider the complaint on the merits, lawyers of the Ukrainian government admitted in conversations with European Pravda that Kyiv’s position on the territorial issue has some problems.
In 2014, the borders of the non-government-controlled territory changed every week or even every day. Kyiv, of course, submitted to Strasbourg maps of its control in Donbas at different times, but it was aware that this did not solve the problem: the Court would not specify the daily GPS coordinates of the Russian Federation’s responsibility in its judgment.
The situation was further complicated by the fact that in its judgment in a similar case, Georgia v. Russia, concerning the events of the 2008 war, the Court refused to consider the events during the Russian offensive and hostilities. It explained that at that time there was a “fog of war” in Georgia when the principle of effective control did not apply. Formally, the Court should have used the same approach to Ukraine, since the ECHR is based on case law. However, during the occupation of part of Georgia, hostilities lasted only five days, while in eastern Ukraine, active military clashes did not stop for months!
In short, the team of the Ukrainian Ministry of Justice was waiting for the decision with impatience and anxiety.
There were thoughts that the decision on the territory might be postponed until the consideration of the complaint on merits (as happened with the Georgian complaint against Russia), or the court will limit to the territory that had not changed control after the occupation of Donetsk and Luhansk and where no active hostilities had taken place. And this is much less than the entire territory of separate districts of Donetsk and Luhansk regions.
But the Court’s judgment exceeded even the most optimistic expectations.
The entire territory controlled by the so-called “DPR” and “LPR” was included in the Russian Federation’s zone of responsibility, as “all these territories were under the effective control of the Russian Federation from May 11 onwards”.
An interesting detail: The court had detailed evidence provided by Ukraine regarding Moscow’s personnel, political, economic and military control over the decisions of the de facto authorities in Donetsk and Luhansk, mostly dating back to 2014-2015. Therefore, the judges had to prove that Moscow’s full control continued. This was done by Russian authorities! In June 2020, the Russian government, in response to a request from Strasbourg, sent a written response stating that the essence of Moscow’s relations with the separatist regimes “has not changed.” Consequently, in the absence of evidence to the contrary, the Court ruled out that Russia’s full control over the occupied territories remained in place at least until the winter of 2022.
“Actions and omissions of the separatist authorities are part of the responsibility of the Russian Federation, just as the actions and omissions of any local authority in the Russian Federation,” the Court explained.
What to do with the changes in the LPR/DPR’s control boundaries?
Yes, it did take place. That is why the Court gave Russia the right to file objections during trial on the merits if Ukraine claims violations “on territory that the separatists did not actually control or if specific actions of specific separatists cannot be attributed to the Russian Federation.”
An ideal formulation for Ukraine, given that Russia has decided to ignore the process – and, thus, will not object to anything at all!
But what about the territories where the fighting took place?
The ECHR could not completely turn a blind eye to its decision in the Georgian case, so it decided to interpret it in a special way. The court can indeed exclude from the complaint those episodes that relate to military operations, but not all, but only those where “hostile military forces seek to establish control over the territory in conditions of chaos.” For example, human rights violations during the storming of a village or city cannot be considered. And the downing of MH17 did not take place in chaos because the place from which the missile was launched was not attacked at that time, the Court explained, and therefore the jurisdiction of the ECHR was confirmed over this episode. In fact, this makes almost all the episodes of the Ukrainian complaint admissible.
By separate provisions, the ECHR also allowed the consideration of episodes when Russia carried out artillery shelling of the territories controlled by Ukraine, i.e. caused damage to Ukrainians and businesses outside the “LPR/DPR”. The Court will decide on the admissibility of each individual episode during the trial on the merits.
This decision is an absolute victory for Ukrainian lawyers.
Wait, but Russia has withdrawn from the Council of Europe and does not recognize these decisions!
Yes, it did. More precisely, it did not withdraw but was expelled from the organization.
However, this does not affect the trials related to the events of 2014-2022: Russia remains responsible for human rights violations committed in the past. The Russian Federation assumed this obligation 25 years ago when it ratified the documents of the Council of Europe.
An important detail: in this case, the Russian Federation participated in the process to the very end, submitting evidence and objections, attending the hearing (held in January 2022), and so on. It was only in November 2022, a week before the sentencing (i.e., at the moment when Russia’s crushing defeat, in this case, became obvious to the members of the court!), that ECHR judge from Russia Mikhail Lobov announced his withdrawal from the case. But this did not stop the passing of judgment.
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So the current judgment was passed in a competitive procedure. And this is actually very important for its international legitimacy.
The fact is that the ECHR’s judgment, published on Wednesday, does not need to be implemented. Its main value lies elsewhere: in the fact that the ECHR has become the first international court to define the temporal and territorial boundaries of the Russian occupation in Donbas. International justice works in such a way that the decisions of one judicial body are usually recognized or taken into account by others. That is why it is now a proven fact for the international community, as well as for other trials, that Russia’s armed aggression in eastern Ukraine and the Russian occupation of parts of the eastern regions began in the spring of 2014, and that the so-called “DPR” and “LPR” were fully controlled by Moscow.
As for the consideration of this case on the merits, it will also take place, even without the Russian judge. The ECHR will appoint a replacement.
What did it change for Ukrainians? They already knew that Russia was the aggressor
In fact, diplomatic victories are important for everyone because it affects the country, so we should not underestimate the fact that the world will have to recognize the reality of the occupied Donbas.
But there is another, more comprehensive impact.
Recognizing that it is Russia that is legally responsible for the events in Donbas is important for those Ukrainian businesses that have lost their property. In particular, the de facto authorities of the so-called “DPR” and “LPR” have been expropriating the property and businesses of Ukrainian owners. Some of the property and equipment of Donbas plants were taken to Russia, while others were destroyed. Now the owners have a way to recover these losses from Russia.
“This decision paves the way for investment arbitration,” explained Iryna Mudra, the Deputy Minister of Justice, who was present at the announcement of the judgment in Strasbourg.
Of course, recovery of funds from Russia through arbitration is not an easy process, but it is available to big business. Especially now, when more and more countries are preparing to expropriate the property of Russia and Russians to pay off Ukraine’s losses. In this process, the state will be able to claim larger compensation, taking into account losses since 2014, and business asset owners will be able to participate in the distribution of seized Russian funds.
In addition, the decision on jurisdiction in the Donbas case unblocks the consideration of many complaints against Russia previously filed with the ECHR over the events in Donbas. Moreover, it is quite possible to win these cases, given the very broad scope of jurisdiction. But we must be aware that it will be unrealistic to recover compensation from Russia passed in Strasbourg in the near future. Russia refuses to voluntarily comply with the ECHR judgment. The only real hope is for a comprehensive agreement that will include repayment of Russia’s debt to the plaintiffs at the expense of confiscated assets.
And why has Russia been an occupier only since May 11? Where did this “betrayal” come from?
This clause of the judgment is one of the few on which Ukraine’s expectations were not fully met, as Kyiv believes that it lost control of part of Donbas no later than April 30.
However, in its arguments, the ECHR chose a different date – the day of the so-called “referendums” on the creation of the “DPR” and “LPR”, i.e. May 11, 2014. Since these votes were orchestrated by Moscow, and then received open support from the Russian authorities and became the starting point for the formation of the occupation administrations of the “republics” with Russian representatives, the Court decided that this day is the starting point.
And the most important thing here is that Ukraine actually loses nothing from this choice of date.
There is no difference between April and May 11 for investment arbitration claims because all expropriation decisions were announced and implemented later. Most, if not all, of the crimes committed by Russian troops in the east, which are the subject of complaints to the ECHR, also date back to a later period.
Therefore, this is not a “betrayal”, especially against the background of an absolute victory on other points.
Therefore, the Ukrainian legal team, which has been working since 2014 to make this decision a reality, can only be congratulated. And we wish them the same success in other international proceedings against the aggressor state.
Originally posted by European Pravda, translated and edited by the UaPosition – Ukrainian news and analytics website
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