In the 25 January 2023 final decision in the case of Ukraine and the Netherlands v. russia, the Grand Chamber of the European Court of Human Rights (“ECHR”) declared the complaints partly admissibile. The Grand Chamber will now decide the case on the merits.
The case concerns three complaints related to russia-orchestrated military takeover and de facto occupation of the territories in Ukraine through the so-called separatist states “DPR” and “LPR” from spring 2014. Ukraine lodged two applications in relation to a pattern (administrative practice) of continuing violations of a number of Articles of the European Convention on Human Rights (“Convention”) (Ukraine v. russia (re eastern Ukraine) (no. 8019/16)) and on abduction of three groups of children (Ukraine v. russia (II) (no. 43800/14)). The Netherlands’ application concerned the shooting down of Malaysia Airlines flight MH17 (The Netherlands v. russia (no. 28525/20)).
According to the ECHR russia had effective control over all areas under the “DPR” and “LPR” from 11 May 2014 – the date of the so-called “referendums”. The threshold was satisfied as a result of vast evidence of russian military presence in eastern Ukraine and the decisive degree of influence it had enjoyed over these areas due to its military, political, and economic support to the separatists.
Accordingly, the ECHR established russian spatial jurisdiction over events which took place within the areas of the “DPR” and “LPR” after 11 May 2014, including downing of the MH17 Boeing.
Significance of ECHR jurisdictional conclusions for future BIT cases
The ECHR conclusions on russian effective control over the relevant parts of Ukraine may pave a more certain route for investment arbitration claims emerging from the russian aggression in Ukraine. It will be relevant both for cases on events that occurred since 2014 and during latest stages since 2022.
The ECHR position differs from Crimean investment arbitrations in which tribunals referred to the date of the formal annexation as the starting point of the russian effective control over occupied areas. The ECHR recognised the date of the “referendums” as the starting date to establish russian effective control. This may be a valuable point of reference in establishing russian jurisdiction over actions in Donetsk and Luhansk regions of Ukraine as well as in other parts of Ukraine russia attempted to annex in 2022.
The ECHR accepted that Ukraine provided sufficiently substantiated prima facie evidence of an administrative practice and admitted its complaints under Articles 2, 3, 4 § 2, 5, 8, 9, 10, and 14 of the Convention and Article 1 of Protocol No. 1, Article 2 of Protocol No. 1, and Article 2 of Protocol No. 4 to the Convention. Other Ukraine’s complaints were declared inadmissible.
Likewise, the ECHR found that the Netherlands provided sufficiently substantiated prima facie evidence and admitted its Articles 2, 3, and 13 of the Convention complaints.
By Kostiantyn Likarchuk, Senior Partner, Vadim Medvedev, Partner, Oleksii Maslov, Counsel, Avellum