ECHR starts substantive hearing of Dutch complaint over downing of flight MH17

The ECHR had to consider whether it should hear the substance of three complaints against Russia: one from the Netherlands and two from Ukraine. Russia argued, among other things, that the ECHR lacked jurisdiction because the victims, including their relatives, must first litigate in Russia about possible human rights violations. The ECHR did not accept this argument. In this blog, we discuss the background to the proceedings (section 1), the complaints filed (section 2), the ECHR's opinion (section 3) and the follow-up and importance of these proceedings (section 4).

1. Principal facts

In 2014, an armed conflict between pro-Russian separatists and the Ukrainian army began in the eastern regions of Ukraine, including the Donetsk and Lugansk regions. On 11 May 2014, the separatists held referenda in the territory they occupied and declared independence as the "Lugansk People's Republic". Fighting intensified, and on 17 July 2014 Malaysian Airlines flight MH17 was downed in the Donetsk region, killing all 298 civilians aboard. In the years that followed, ceasefires were agreed and then breached. The conflict is still ongoing, with the Russian army invading Ukraine on 24 February 2022.

2. The complaints filed

In this judgment, the ECHR addressed three complaints by the Netherlands and Ukraine jointly.

• Ukraine's first complaint concerned a pattern of violations (known as an "administrative practice") in eastern Ukraine of a number of provisions of the European Convention on Human Rights by Russia. These include military attacks on civilians in which many have been killed, including the downing of MH17. It also covers the torture and execution of Ukrainian soldiers and civilians, forced labour, abductions, unlawful arrests, attacks on the press, and a prohibition on teaching in the Ukrainian language.
• Ukraine's second complaint concerned the abduction of three groups of children in eastern Ukraine between June and August 2014.
• In 2020, the Netherlands filed a complaint against Russia that concerned the downing of the MH17 flight. The Netherlands argued that Russia played a significant role in the downing of flight MH17. The Netherlands also believed that Russia did not carry out an effective investigation, and did not cooperate sufficiently with Dutch requests for criminal investigations. According to the Netherlands, this, and the fact that Russia continues to deny any involvement in the downing of flight MH17, has caused additional suffering to the victims’ relatives.

3. ECHR judgment

The ECHR first discussed some general points relevant to all three proceedings.

3.1 General

• No contracting party: Russia has not been a contracting party to the ECHR since 16 September 2022. The court considered itself competent to examine the complaints because the underlying facts occurred before that date.
• Jurisdiction: The Court further found that the events underlying both Ukraine's complaints and the Netherlands' complaint fall within Russia's jurisdiction. The Court found that, as of 11 May 2014, Russia had de facto control over the areas held by the separatists. Both Ukraine's complaints and the Netherlands' complaint therefore largely relate to events that were within the spatial jurisdiction of the Russian Federation. To the extent that Ukraine's complaint related to the bombing and shelling outside the separatist-occupied areas, the Court found that these events did not fall within Russia’s spatial jurisdiction.
• The Court further held that the ECHR also applies in a situation of international armed conflict.

3.2 First complaint of Ukraine

Ukraine's first complaint concerned a pattern of violations ("administrative practices") in the Donbas. Two conditions apply to the assumption of a pattern of violations. First, there must be a repetition of identical or analogous acts. Next, these acts must be officially tolerated by the higher authorities of the State addressed. In such a case, it is not required that the complaining party first exhausts domestic remedies. Domestic remedies would then clearly be ineffective at putting an end to the violations. A state’s complaint is primarily designed to expose such a pattern.

The ECHR found that Ukraine had provided sufficient prima facie evidence of a pattern of violations, including reports from international organisations, NGOs and testimonies.

3.3 Second complaint of Ukraine

Ukraine's second complaint concerned child abductions. According to Ukraine, this concerned both a pattern of violations and individual violations. The ECHR found that the three incidents could be seen as a pattern of violations and are admissible to that extent. 

For individual violations, other than complaints about a pattern of violations, the requirement of exhaustion of domestic remedies applies in full. To the extent that the complaint related to individual violations, it was declared inadmissible by the ECHR, as the Court found that it had not yet been established that no legal remedies could be exercised in Russia in respect of these events. The rule that domestic remedies must have been exhausted also applies in this context to interstate complaints, although it is not for the applicant State to prove that remedies have been exhausted.

3.4 Complaint of the Netherlands

Russia had also raised admissibility defences with regard to the complaint of the Netherlands:

• Exhaustion of domestic remedies: The ECHR found that Russia has not shown that there was an effective remedy for the Netherlands concerning the downing of MH17.
• Exceeding of deadline: In addition, Russia had claimed that the Netherlands had exceeded the deadline for filing a complaint in the absence of an effective remedy. This time limit is six months and usually starts on the date of the incident (in this case 17 July 2014). This would mean that the Netherlands had exceeded this deadline. However, the Court held that this approach would be incompatible with the interests of justice and the objectives of this time limit. On the date of the incident, there was much uncertainty as to the precise circumstances surrounding the downing of the aircraft. It was not unreasonable for the Netherlands to have waited for sufficiently credible, concrete evidence before lodging the complaint. The investigation carried out by the Netherlands and the Joint Investigation Team (JIT) was swiftly launched and has since been pursued diligently and transparently, consistently requesting Russia's assistance. The Court found that – in light of the exceptional circumstances of the case – the Netherlands filed the complaint in a timely manner.
• Sufficient prima facie evidence: The ECHR found that there is sufficient prima facie evidence, in particular arising from the JIT investigation, to support the Netherlands' claims of violation of ECHR provisions.

The ECHR therefore declared the Netherlands' complaint admissible.

4. Follow-up and importance of the procedure

The ECHR will now assess the substance of the proceedings. In the coming period, the ECHR will be dealing with several cases related to the situation in Ukraine. In addition to the present case, four other interstate cases between Ukraine and Russia and more than 8,500 individual applications are currently pending before the Court concerning events in Crimea, eastern Ukraine, the Sea of Azov and Russia's armed attack that began in February 2022. The individual requests also include cases filed by relatives of people killed in the MH17 disaster.

The aim of these cases at the ECHR is to help achieve "truth, justice and accountability for all victims and their relatives", as is written on the Dutch governments’ webpage concerning the MH17 proceedings.