Introduction

Apart from the individual applications brought before the European Court of Human Rights (ECtHR, the Court) by the next of kin that we discussed in chapter 3, on 10 July 2020, the Netherlands also filed an inter-state application against Russia before the ECtHR for the downing of flight MH17 and its aftermath; the case The Netherlands v. Russia.  The Netherlands brought this case in support of the individual proceedings that were discussed in the previous chapter.  The government of the Netherlands alleges that Russia is responsible for the downing of flight MH17, in breach of article 2 (right to life), article 3 (prohibition of torture and inhuman or degrading treatment) and article 13 (right to an effective remedy) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, the Convention).  In November 2020, the Court joined this application with Ukraine v. Russia (re Eastern Ukraine) and Ukraine v. Russia (II), both concerning conduct by Russia in the context of the conflict in Eastern Ukraine.  By joining the cases, the Court will analyze and judge these three inter-state applications jointly.  The decision to join the cases was taken by the Court “in the interests of the efficient administration of justice.”

With this inter-state application, the Netherlands want to offer “maximum support to [the next of kin’s] individual cases” and represent, or champion, all victims of Flight MH17 and their next of kin.  On the one hand, by submitting this application, the Netherlands furnishes the ECtHR with all available relevant information and legal analysis regarding the downing of Flight MH17.  On the other hand, the Netherlands also contributes supporting argumentation and claims established in its inter-state application to the individual proceedings through a third-party intervention in the individual applications by the next of kin.  In this sense, the Dutch inter-state application complements the next of kin’s individual applications, aiding a more in-depth evaluation of the MH17 case(s) by the ECtHR.

This chapter explains how inter-state proceedings before the ECtHR function and what the case’s outcomes and consequences may be; specifically, how these proceedings may impact other legal proceedings on MH17 and in what way they may benefit the next of kin. 

Inter-State Proceedings at the ECtHR

In addition to individuals, any High Contracting Party to the ECHR (member state) may also start inter-state proceedings on an alleged violation of the ECHR by another contracting state pursuant to article 33 ECHR.  Inter-state applications are much less common than individual applications.  While in individual applications the applicants are victims whose rights are allegedly violated, in inter-state proceedings, states cannot be themselves considered as victims because human rights protect the rights of individuals; states do not have human rights.  Instead, states that file an inter-state application against another state are considered to do so to protect the public order of Europe against human rights violations.

Member states can use the inter-state application in favor of individuals regardless of their nationality, meaning that the range of potential beneficiaries is not limited to the nationals of the complaining state.  For an inter-state application, the admissibility criteria such as the rule to exhaust domestic remedies, are much less strictly applied.

Inter-state cases are considered important and sensitive matters by the Court.  For that reason, the Grand Chamber, which deals with particularly significant cases and consists of 17 judges, ordinarily examines inter-state cases.  The joined cases against Russia regarding Eastern Ukraine and MH17 are also referred to the Grand Chamber and will thus be examined by this highest chamber of the Court.

Actors

The main actors in inter-state applications proceedings are the applicant state(s) and the respondent state.  Here, the Netherlands and Ukraine are the applicant states and Russia is the respondent state.  However, as also discussed in chapter 3, the Court accepts written third-party interventions by those with an active interest in the case.  In the Netherlands v. Russia case, Stichting Vliegramp MH17 and the lawyers for the individual applications have lodged such a third-party intervention, as well as have the Human Rights Law Centre of the University of Nottingham.

Applicants participate in proceedings through their lawyers.  For states, these lawyers are called agents.  The ECtHR conducts its proceedings through written submissions.  However, the Court may also hold hearings, in which both side’s arguments are discussed.  Applicants are not required to attend these hearings personally but can choose to do so if they wish.  All hearings are also recorded and can be viewed online on the ECtHR’s website.

Timeline

Inter-state cases before the ECtHR start with an application.  In the inter-state proceedings regarding MH17, this happened when the Netherlands lodged an application against Russia on 10 July 2020.  However, now that this case is joined with the Ukrainian inter-state applications that were filed previously, the inter-state application of the Netherlands is sped up through the process.

When a state brings a case against another state before the ECtHR, it must lodge an application including a statement of facts and alleged violations and arguments.  When an inter-state application is lodged before the ECtHR, the Court immediately communicates it to the respondent state.  That state is then invited by the Court to submit written observations, which the applicant state may then reply to in writing.  The Court may decide to hold an admissibility hearing if it chooses itself to do so, or if one or more of the states concerned requests it.

Once an inter-state application is declared admissible, the Court lays down the time limits for filing the written observations on the merits and for providing further evidence.  However, the Court may decide to organize a merits hearing.  A hearing on the merits can be held if one or more of the states involved requests one or if the Court itself decides to hold a hearing.

The states may first be invited to arrive at a friendly settlement (non-contentious phase) before moving into the merits phase.

The length of the proceedings is always difficult to predict, also for inter-state applications.  However, because the The Netherlands v. Russia application is joined with the two Ukrainian cases against Russia regarding Eastern Ukraine, the inter-state application of the Netherlands is somewhat fast-tracked.  That said, with joining the cases, they also become more complex and more states are involved who need to address answers from the Court, which can take more time.

In past inter-state cases, the length of proceedings varied between three and up to 18 years.  However, in the longest cases, the Court separated the identification of violations from the evaluation of necessary compensation.  In those cases, it delivered a judgment on the human rights violations after five to seven years, and decided that the issue of compensation was not yet ready for decision.  The Court delayed its judgment on just satisfaction (i.e. compensation), to after 12 to 17 years.  However, the Court gives special importance to inter-state cases.  These cases are automatically included in the Court’s priority policy and are thereby “fast-tracked,” which means the ECtHR dedicates particular effort to reaching its judgment more quickly.

Stages of Proceedings

Similar to individual applications, inter-state proceedings are structured into two main stages: admissibility, where the Court verifies if a case conforms with its procedural rules and may thus be further examined by it; and merits, in which the Court reviews the content of the application and decides if a violation of human rights has occurred.  Chapter 3 already discussed the general rules on these two phases in the ECtHR’s proceedings.  This section focuses on the differences between the inter-state proceedings and the proceedings relating to individual applications. 

Admissibility Stage

All High Contracting Parties (member states) of the ECHR have the right to bring any alleged breach of Convention rights by another member state to the ECtHR.  While an inter-state application also has to conform to the ECtHR’s admissibility criteria, they are less strict for inter-state applications than for individual applications.

For the Court to reject an inter-state application it has to be “wholly unsubstantiated” or “lacking the requirements of a genuine allegation,” which generally does not occur.  Moreover, unlike individuals, states may bring an application that is substantially the same as prior cases before the ECtHR.  States are also exempt from the principle that only those that suffered a “significant disadvantage” from a violation of the Convention may apply.  Since human rights protect the rights of humans rather than states, when a state lodges a complaint, it does not have to claim to be a “victim” of any breach as in individual applications, or has to justify any special interest in the subject matter of the application.  Instead, ECHR member states can use the inter-state proceedings to act on behalf of the legal order.  However, even if the rules are different and applied less strictly, states nevertheless also have to abide by a number of procedural requirements and the Rules of the Court.

Exhaustion of Domestic Remedies

The requirement of exhaustion of domestic remedies asks that an applicant, before bringing a case against a state to the ECtHR, has to make use of all available legal avenues within the judicial system of that state.  The rules apply differently depending on the type of inter-state application.

First, in cases where a state applies on behalf of victims, the rules of admissibility apply in the same way they do in individual proceedings.  Where possible, all available courts in the state against which the complaint was filed have to examine the case first before it can be brought before the ECtHR.  Alternatively, the applicant state has to provide arguments as to why domestic courts were unavailable or ineffective for the victims.  However, states do not have legal standing before another state’s domestic courts.  Therefore, the Netherlands could not have brought their claim against the Russian state before Russian national courts.  Consequently, the requirement of exhausting domestic remedies applies less strictly to inter-state proceedings.

Second, where the inter-state application concerns an “ongoing violation” of ECHR rights or where another state party addresses an “administrative practice or legislation” in another state that systematically violates human rights, the rule to exhaust domestic remedies does not apply.  The rationale behind these types of violations is not to address a single violation on behalf of a victim, but to prevent the continuance of a pattern of violations and its recurrence.  For these types of violations, there needs to be a “repetition of acts” and “official tolerance” by higher authorities and a failure to act.   

The Dutch inter-state application exhibits elements of both of these types of cases.  The Netherlands can argue that there are no effective, adequate and accessible domestic remedies available to the victims or to them as a state, similar to how the victims have argued this in their individual applications.  However, the Netherlands may additionally argue that they address an “ongoing violation” and an “administrative practice” with the aim of preventing its continuation or recurrence and that therefore the rule to exhaust domestic remedies does not apply.  The Court will then need to decide whether this exemption of the rule to exhaust domestic remedies also applies to the one incident of downing MH17 rather than a “repetition of acts,” or whether, for example, the repetition of acts lies in the continued denial of knowledge and responsibility and provision of disinformation. 

Six-Month Rule
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It is connected to the rule of exhaustion of domestic remedies.  Applicants need to bring their claim before the ECtHR within six months of the date of decision of the highest available court in the state against which the case is filed.  If domestic remedies are unavailable, the time limit starts from the date of the act that violated ECHR rights.  However, the Court also applies the six-month rule less strictly in inter-state proceedings.  Moreover, in an ongoing situation and cases concerning administrative practices, the six-month rule usually does not apply.
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For MH17, many more than six months passed before the inter-state application was submitted.  Importantly, the Netherlands can argue that because of the sensitivity to bring a case against another state, it has been important to first investigate whether Russia was involved, which took years, and that once the investigations indicated that Russia indeed was, they invited Russia to negotiate on the matter.  It is custom in international affairs to first attempt an amicable settlement before turning to a judicial setting.  It will thus be up to the Court to decide whether special circumstances exist to bypass the six-month rule and declare the inter-state application admissible.

Merits Stage

Admissible inter-state applications move on to the merits stage of proceedings.  In this phase, the Court evaluates which human rights may have been violated.  The Dutch inter-state application concerns breaches of article 2, article 3, and article 13, which were also discussed in chapter 3.  The Court’s approach to evaluating the merits of an inter-state application does not differ from the approach taken in individual application proceedings.  Further information on the articles and how they protect human rights can be found in chapter 3 on individual applications.

Remedies

Before the ECtHR, compensation is called just satisfaction.  As outlined in chapter 3, the Court does not always grant a right to just satisfaction.  It may decide that identifying a violation of human rights is enough to restore the injustice suffered by the victims.  In inter-state cases this has been the most commonly taken approach.  Only since its judgment in Cyprus v. Turkey (IV) in 2014, the Court has also ordered the payment of compensation in inter-state cases and only done so once since.  In Cyprus v. Turkey, Turkey was required to pay Cyprus compensation of €90 million for non-material damages, including damages suffered by relatives of victims.  In Georgia v. Russia (I), Russia was ordered to pay €10 million for non-material damages.

Regarding the requirements and eventual sum of possible just satisfaction, the Court has no public guidelines and normally decides this on a case-by-case basis.  However, as in individual proceedings, the Court will consider material and non-material damages suffered by the victims due to the violation and determine a sum that it believes will offset the violation.

Since the ECHR concerns the rights of individuals, not of states, the awarding of just satisfaction “should always be done for the benefit of individual victims.”  In distributing compensation awards from the ECtHR, states are not restricted to those victims that are their nationals, but can include all victims regardless of their nationality.  In the past, the Court decided that compensation awarded in an inter-state proceeding should solely belong to those victims that did not submit an individual application.  

Enforcement of Judgment

Similar to the individual applications, if the ECtHR finds that Russia violated the ECHR and would award just satisfaction and Russia refuses to pay, there are no enforcement mechanisms available to ensure such payment other then diplomacy and - possibly - sanctions.

If there is a refusal to comply with the judgment, theoretically, the Netherlands could request the UN Security Council to address the lack of compliance.  However, in the MH17 situation, should Russia not be compliant with a judgment, as a permanent member of the UN Security Council, they could use their veto power to prevent the Security Council from making any investigation, recommendation or decision.

Nevertheless, even in the case of non-compliance, a favourable judgment can contribute to a sense of judgement in and of itself.  The judgment is published and offers acknowledgement and an authoritative judgment.  This is a form of recognition, and it can also help persuade global public opinion and other states to add pressure to come to a resolution of the dispute. 

Interaction with Other Proceedings

Overlapping individual and inter-state cases before the ECtHR have become more common in recent years.  The ECHR does not address the relationship between overlapping proceedings, but the two do not exclude each other.  The Court has said that introducing an inter-state application does not deprive individual applicants of the possibility of introducing or pursuing their own claims.  Also, the fact that inter-state and individual proceedings concern the same facts will not make the individual application inadmissible.  However, Court has prioritised the inter-state cases before considering the individual applications concerning MH17, because all of the proceedings require the same decision regarding article 1 of the ECHR, namely whether Russia had jurisdiction in Eastern Ukraine with respect to the downing of MH17.

Regarding overlap of legal issues also analyzed by other (international) courts, the ECtHR is careful not to overreach its own mandate.  Generally, member states can only bring claims concerning ECHR rights before the ECtHR.  The Court’s Committee on Working Methods has also cautioned the ECtHR to avoid examining issues or elements of a case that are within the competence of other international courts.