Introduction

Various legal proceedings related to MH17 can lead to remedies, such as compensation awards, for the next of kin.  It is impossible to translate the loss and pain of losing a loved one in remedies, since no remedy can bring those that have died back to life.  Nevertheless, remedies following legal proceedings, including the recognition through a court’s judgment, may contribute to a sense of justice.

In the various legal proceedings, claimants/applicants have requested courts to declare that the downing of Flight MH17 and the resulting death of those who were on board constituted a wrongful act or crime.  If a wrongful act or crime is found, those who have suffered loss and harm as a direct result of the act, such as the victims’ next of kin and the states that have lost nationals in the crash, can often claim remedies in the various proceedings from those that are held responsible.  While no compensation will ever restore the situation that existed before the downing of Flight MH17, it is a way to minimize the financial loss and psychological harm suffered by the victims’ next of kin.

While the previous chapters have addressed the technicalities of each of the legal proceedings related to MH17, this chapter focuses specifically on the extent to which the various remedies and in particular the financial compensation schemes in the different legal proceedings may interact with each other.

Remedies in Legal Proceedings

In principle, the laws that govern the remedies that can be awarded in the various legal proceedings follow the logic that when a party commits a wrongful act (acts that violate the law) and if that act directly causes financial loss or other detriment to another party, such as injury, emotional distress, invasion of privacy, etc., he or she can be held liable and be requested to remedy the harm.

There are three categories of remedies: monetary compensation (also referred to as “damages”); restitutionary remedies (meant to restore the situation as close as possible to the situation prior to the wrongful act); and equitable remedies (such as a restraining order or apology).

The goal of compensation and other remedies is to correct the harm or loss that is directly caused by a wrongful act (also known as a tort) and, if possible, to restore or restitute the situation that existed before that act.  If it is not possible to restore the situation that existed prior to the wrongful conduct, as in the situation of MH17, a court can award compensation through financial means for the purpose to compensate the victim or next of kin for their injuries, losses, and pain and suffering.  Once damage has been compensated, it is considered to have been repaired, even if the situation prior to the damaging act has not been restored.

Options for Remedies in the MH17 Legal Proceedings

Each of the legal proceedings discussed throughout in the earlier chapters follow their own rules and types of remedies.  This section summarizes what was provided in the previous chapters for each of the legal proceedings related to the remedies they can lead to.

Criminal Law Remedies

Under Dutch criminal law, discussed in chapter 1, if the four suspects are found guilty in the trial that is currently ongoing at the District Court of The Hague, they can be punished with imprisonment and/or fines that are to be paid to the Dutch state.

Since the suspects are not in the Netherlands, they may not be imprisoned if they are found guilty and sentenced to spend time in prison.  Russia is prohibited to extradite its nationals even if it would want to cooperate.  If found guilty, there will be international warrants of arrest prohibiting them to travel abroad or at least limiting this to where they find guarantees of protection.  Their international assets may moreover be seized if they have any.  If those that are found guilty escape their sentence because they stay out of reach of enforcement, it will be hard to feel that justice is done.  By no means does any type of “perfect justice” exist in the international legal order, governed by sovereignty and lack of effective enforcement.  Nevertheless, the evidence will have been assessed in public through a fair trial and the judgment will provide a sense of acknowledgment.  Moreover, a judgment also helps create a common narrative of what has transpired and who is responsible for what, and thereby helps to fight denial.  Furthermore, criminal trials as well as judgments and remedies awarded through other legal proceedings strengthen the international legal order in emphasizing that even when believing to be shielded by impunity, increasingly courts get hold of those responsible for crime and other wrongdoing, wherever in the world they are committed.

Civil Law Remedies

‍In addition to the typical criminal law remedies of imprisonment and fines, the criminal trial can also award civil law compensation claims if the defendants are found guilty, as is discussed in chapter 2.  Because MH17 was downed on Ukrainian territory, for the civil complaints’ procedure, Ukrainian law is applied.  In total, 301 next of kin submitted a compensation claim for moral damages as injured parties to the criminal trial (and more may follow).  Moral damages (or immaterial damages) are a type of monetary compensation to compensate the next of kin for their pain and suffering.  The claims are based on a fixed sum of €40,000, €45,000 or €50,000 for each relative of each victim, the amount depending on the relatives’ relationship with the victim(s).  The Court will consider the claims during the merits stage of the criminal proceedings and will decide in the final judgment whether the defendants, if proven guilty, have to pay compensation to the next of kin, via the Dutch state. 

Once the Netherlands has received the money from the perpetrators, it transfers it to the next of kin.  The Court may also impose the schadevergoedingsmaatregel, a legal action through which the state becomes the collector of the compensation award on behalf of the injured parties.  If the perpetrators have not paid compensation within eight months after the day on which the judgment or appeal judgment has become final, the state will then pay part of or the entire sum of the (remaining amount of) compensation to the next of kin.  This way, the victim is relieved from the burden of executing the court order.  The Centraal Justitieel Incassobureau (CJIB), the Dutch agency that is responsible for enforcing payment orders issued by courts.  If the amount is not paid within a determined period, the CJIB advances the payment to the injured party and tries to claim the amount from the offender.  However, only if the suspects are found guilty of murder or manslaughter will the state pay the entire sum.  If only article 168 DCC (causing a plane to crash) is found proven, the state pays up to €5,000 to the injured parties.  

Many of the next of kin have received compensation from the Malaysia Airlines Group based on civil law proceedings under international civil aviation law and Malaysian law.  Since the agreements closed with the Malaysia Airlines Group are confidential, it is not clear whether only material or also immaterial damages were compensated.

Furthermore, as was discussed in chapter 6, there have also been cases based on civil law in the US.  In the Girkin case, compensation has been awarded but it remains unclear whether any of this money will ever be paid by Igor Girkin.  The litigation against two Russian banks (Sberbank and VTB Bank) and two money transfer companies (MoneyGram International and Western Union) for their support to the Donetsk People’s Republic (DPR) is still ongoing and may also lead to compensation awards.  US civil law recognizes higher amounts of compensation than the Netherlands and can therefore exceed those that may be awarded within the Dutch legal system.

Human Rights Law Remedies

‍The European Court of Human Rights (ECtHR) may award “just satisfaction” in both individual proceedings (chapter 3) and inter-state proceedings (chapter 4) when it finds that a human rights violation has occurred.  Just satisfaction is another term for financial compensation and is intended to compensate applicants for material damage, immaterial damage, and legal costs and expenses.  It is not intended to punish states.

In individual proceedings, compensation may be awarded to victims of human rights violations (or their next of kin) who have submitted applications that meet the technical requirements in the ECtHR.  In inter-state proceedings, there are no clear guidelines on how the ECtHR distributes compensation.  However, prior rulings of the ECtHR indicate that any award of compensation should be for the benefit of the victims or next of kin.

Public International Law Remedies

‍Ukraine has filed a case against Russia at the International Court of Justice (ICJ) that includes the MH17 crash.  The case is however much wider in substance and covers a large amount of alleged violations occurring in Eastern Ukraine as well as Crimea.  Moreover, if the Netherlands/Australia would pursue further legal action against Russia for its involvement in downing MH17 under public international law and eventually submit the dispute to the ICJ, the ICJ may also award compensation, provided the situation prior to the wrongful act cannot be re-established (see chapter 5).

At the ICJ, compensation generally only covers financially assessable damage.   The ICJ may only award compensation to the state for the damages that the state suffered.  Therefore, compensation would be awarded to the state(s), not to the next of kin of MH17 victims.

Interaction Between Proceedings

A recurring theme in the Dutch criminal proceedings has been that the Court has requested that the next of kin demonstrate to the Court what compensation they already received or were awarded in other legal proceedings.  The reason is that if Dutch civil law applies to the compensation claims submitted adjoined to the criminal trial, compensation might only be awarded if and to the extent that the damage has not been compensated yet by other parties.  The Dutch Supreme Court has previously allowed the victim or next of kin to choose whether they want to receive compensation from their insurance company or from the perpetrator.  If the damage is already compensated by, for instance, an insurance payment, another court, or a co-perpetrator that is jointly and severally liable, the Court may dismiss the claim if it has to apply Dutch civil law.

However, while this aspect is important under Dutch civil law, under Ukrainian civil law this rule that compensation from the perpetrator is dependent on whether the victims or next of kin already received compensation from other parties does not exist in the same manner.  If the Court in its final verdict indeed decides that Ukrainian law applies, compensation already paid may then not be a factor as it would be if Dutch civil law would apply.  Similarly, the next of kin may not be able to claim moral damages under Dutch civil law, since Dutch law only recognizes moral damages since 1 January 2019 and only for damage that has been causes on or after that date, while Ukrainian law already recognized moral damages prior to the MH17 crash.

This decision on the applicable law needs to decide between differing interpretations of the extent to which foreign law applies in accordance with European legislation and is therefore legally complex.  The extent to which other legal proceedings interact with the type and amount of compensation that is awarded through other means, therefore depends on the Court’s final decision on which law applies to the MH17 compensation claims within the Dutch criminal proceedings.

The ECtHR has affirmed a similar practice to that of Dutch civil law: once compensation has been awarded for the damage, the ECtHR may reduce an award or refuse to provide compensation at all.  Due to the lack of established practice and the many factors that are taken into account by the ECtHR when determining compensation, other awards received in connection with related proceedings may affect the amount of compensation available through ECtHR individual or inter-state proceedings.  For instance, in Georgia v. Russia, the ECtHR refused to compensate a group of victims that were listed by Georgia on the basis that they had already successfully received other available remedies.  This case demonstrates the ECtHR’s reluctance to provide compensation to victims when those victims have already been provided with redress.  The ECtHR may consider the compensation awarded in other proceedings (including in the other ECtHR proceedings) and adapt its award to an amount that would cover any remaining damage or that provides redress for a different kind of damage than was already provided.

As a result, if the next of kin have received compensation in one of the proceedings, this may be taken into account in other proceedings to consider to what extent the type and amount of compensation this legal proceeding would find appropriate is already compensated, but to what extent the different courts are obliged or accustomed to do so, is not clear.  

Moreover, an important distinction arises between material damage and immaterial damage.  Compensation for material damage may not simply be conflated with compensation for immaterial damage and vice versa.  They aim at repairing different kinds of loss or harm.  Therefore, for example, even if financial losses are regarded to have been compensated, a different court may still consider that immaterial damages are not or insufficiently compensated and award this type of compensation.

Furthermore, compensation arising from proceedings between states (at the ECtHR or potentially the ICJ) may also be regarded as awarded for different types of harm than those awarded in lawsuits by individuals, and could therefore also be distinguished by a court.