The case brings together 4 inter-state application launched by the Court under the art. 43 of the ECHR
The case concerns hostilities in Ukraine in 2014, the downing of the MH17 airliner, and events in 2022 after the start of Russia’s full-scale invasion of Ukraine, up to the point at which the Convention ceased to apply to Russia due to its expulsion from the Council of Europe.
- (i) the Convention applies in situations of armed conflict;
- (ii) Convention guarantees are not displaced by IHL;
- (iii) the Convention, in accordance with Article 31(3)(c) of the VCLT, “should, so far as possible, be interpreted in harmony with other rules of international law of which it forms part”.
Factual background
In November 2013, Ukraine suspended preparations for signing an Association Agreement with the European Union and to resume economic and trade relations with the Russian Federation. This gave rise to sustained public demonstrations known as the Euromaidan movement. The unrest escalated into serious violence from 18 February 2014. A political settlement was reached on 21 February 2014 between President Yanukovych and opposition representatives, providing for early elections; the following day, however, President Yanukovych departed Kyiv for the Russian Federation.
In late February 2014, unidentified armed personnel without military insignia began occupying strategic sites throughout the Autonomous Republic of Crimea. On 27 February 2014, armed groups seized the building of the Supreme Council of Crimea and, acting under duress, compelled the dismissal of the existing government and the appointment of Sergey Aksyonov in its place.
The “referendum” in Crimea took place on 16 March 2014 and according to the published results there was overwhelming support for Crimea joining the Russian Federation. On 18 March 2014 Crimea therefore purported to join the Russian Federation.
Meanwhile, in early March 2014, pro-Russian protests began across eastern regions of Ukraine, including in the Donetsk and Luhansk regions. The protestors objected to what they claimed to have been an unconstitutional change of power in Ukraine.
From early April 2014 there was a rapid escalation of violence in eastern Ukraine. Armed groups were formed and they started to take control by force of public buildings as well as of police and security facilities in cities and towns across the Donetsk and Luhansk regions.
On 6 April 2014 armed groups in Luhansk seized the regional office of the Security Service of Ukraine (“SBU”) and declared it to be the headquarters of the “South-East Army”. That night, armed groups occupied the Regional State Administration building in Donetsk and, on 7 April 2014, they declared the independence of the “Donetsk People’s Republic” (“DPR”).
On 12 April 2014 a group of armed men led by Russian national Igor Girkin seized public buildings in Sloviansk, in the Donetsk region. Public administration buildings in a number of surrounding towns were also seized in the following days.
On 14 April 2014 the government of Ukraine launched an “Anti‑Terrorist Operation” (“ATO”) to re-establish control over territory controlled by the separatist armed groups, deploying units of the Ukrainian Armed Forces supported by volunteer battalions.
The conflict entered a materially different phase in February 2022. On 21 February 2022, the President of the Russian Federation issued decrees recognising the "DPR" and "LPR" as sovereign entities and authorising the deployment of Russian forces on their territory.
- toward Kyiv in the north;
- toward Kharkiv and Sumy in the north-east;
- toward Mariupol in the south-east, culminating in a protracted siege that concluded with the city's fall on 20 May 2022;
- toward Kherson and the Zaporizhzhia region in the south, resulting in the seizure of, among other things, the Zaporizhzhia Nuclear Power Plant.
Following the stalling of the initial offensive toward Kyiv by late March 2022, the withdrawal of Russian forces from previously occupied areas revealed extensive evidence of serious violations of human rights and international humanitarian law. From April 2022, Russian operations were reoriented toward the "Battle for Donbas."
From August 2022, Ukrainian counter-offensive operations resulted in the recovery of substantial territory in the Kharkiv, Donetsk, Luhansk and Kherson regions; the liberation of these areas likewise revealed evidence of unlawful killings, torture, sexual violence and arbitrary detention attributable to the period of occupation.
Notwithstanding the absence of effective control over the entirety of the relevant territory, the Russian Federation purported to annex the Donetsk, Luhansk, Zaporizhzhia and Kherson regions on 30 September 2022, following referendums conducted between 23 and 27 September 2022 that have not been recognised as valid under international law.
From October 2022, the Russian Federation additionally conducted a sustained campaign of missile and drone strikes against Ukrainian civilian energy infrastructure. Kherson city was recovered by Ukrainian forces in November 2022.
Case geography
Jurisdiction of ECHR
Grand Chamber did not follow its restrictive approach in Georgia v. Russia (II), where it found that it had no jurisdiction over the active phase of hostilities due to the “context of chaos”[6].
Conversely, the Court said that attacks perpetrated by Russian forces across Ukrainian sovereign territory between 2014 and 2022 had been strategically planned, with the deliberate intention and the indisputable effect of assuming authority and control over areas, infrastructure, and people in Ukraine. This means that if a State uses lethal force on the territory of another State and kills a person, it is exercising authority and control over that individual, and the Convention applies under the personal approach to jurisdiction pursuant to Article 1of the Сonvention.[7] Therefore, the concept of “effective control” allows the ECHR to condemn human rights violations committed during armed conflict.
Effective control over the relevant parts of the Donetsk and Luhansk regions
The Court held, on the basis of the vast body of evidence before it, that Russia had effective control over all areas in the hands of separatists from 11 May 2014 on account of its military presence in eastern Ukraine and the decisive degree of influence it enjoyed over these areas as a result of its military, political and economic support to the “DPR” and the “LPR”.
In particular, the Court found it established beyond any reasonable doubt that there had been Russian military personnel present in an active capacity in Donbass from April 2014 and that there had been a large-scale deployment of Russian troops from, at the very latest, August 2014.
It further found that the respondent State had a significant influence on the separatists’ military strategy. Several prominent separatists in command positions were senior members of the Russian military acting under Russian instructions, including the person who had had formal overall command of the armed forces of the “DPR” and the “LPR”.
Further, Russia had provided weapons and other military equipment to separatists on a significant scale (including the Buk-missile used to shoot down flight MH17). Russia had carried out artillery attacks upon requests from the separatists and provided other military support. There was also clear evidence of political support, including at international level, being provided to the “DPR” and the “LPR” and the Russian Federation had played a significant role in their financing enabling their economic survival.
By the time of the 11 May 2014 “referendums”, the separatist operation as a whole had been managed and coordinated by the Russian Federation. The threshold for establishing Russian jurisdiction in respect of allegations concerning events which took place within these areas after 11 May 2014 had therefore been passed. That finding meant that the acts and omissions of the separatists were automatically attributable to the Russian Federation.
In this connection, the Court recalled that in purely territorial cases, the acts and omissions of local administration were automatically attributable to the territorial State and thus, in cases where a State’s ratione loci jurisdiction was established outside its sovereign borders, to the State which had Article 1 jurisdiction. In the absence of any evidence demonstrating that the dependence of the entities on Russia had decreased since 2014, the jurisdiction of the respondent State continued as at the date of the hearing on 26 January 2022.
ECHR found violation committed by Russian Federation:
- in breach of Article 2, consisting of unlawful military attacks against civilians and civilian objects, including the shooting down of flight MH17, the shooting of civilians and the summary execution and torture or beating to death of civilians and Ukrainian soldiers who were prisoners of war or otherwise hors de combat;Violation established
- in breach of Article 3, consisting of the torture of civilians and Ukrainian soldiers who were prisoners of war or otherwise hors de combat, including instances of sexual violence and rape, and inhuman and degrading conditions of detention;Violation established
- in breach of Article 4 § 2, consisting of forced labour;Violation established
- in breach of Article 5, consisting of abductions, unlawful arrests and lengthy unlawful detentions;Violation established
- in breach of Article 9, consisting of deliberate attacks on, and intimidation of, various religious congregations not conforming to the Russian Orthodox tradition;Violation established
- in breach of Article 10, consisting of the targeting of independent journalists and the blocking of Ukrainian broadcasters;Violation established
- in breach of Article 1 of Protocol No. 1, consisting of the destruction of private property including civilian homes and vehicles, the theft and looting of private and commercial property, and the unlawful appropriation of private property without compensation;Violation established
- in breach of Article 2 of Protocol No. 1, consisting of the prohibition of education in the Ukrainian language;Violation established
- in breach of Article 14, taken in conjunction complaints under the above Articles, consisting of the targeting of civilians of Ukrainian ethnicity or citizens who supported Ukrainian territorial integrity (all unanimously); andViolation established
- in breach of Articles 3, 5 and 8 of the Convention and Article 2 of Protocol No. 4 in respect of the alleged abduction and transfer to Russia of three groups of children and accompanying adults (by majority).Violation established