19 June 2019
Decision to prosecute the suspects.
There are two types of applications before the ECtHR. First, individuals or organizations can complain about a human rights violation by a state that they are victim of. Second, another state can also bring a human rights complaint against a state, which is called an inter-state application. This chapter discusses the individual applications against Russia, while chapter 4 addresses the inter-state application of the Netherlands against Russia. Moreover, chapter 6 on additional legal proceedings for MH17 includes a discussion of the individual applications and the inter-state application of Russia against Ukraine for failing to close their airspace.
This chapter sets out the nature and stages of individual proceedings before the ECtHR, requirements for a case to become successful, potential outcomes, and how the individual proceedings before the ECtHR might interact with other proceedings in this handbook.
In the individual applications against Russia, the next of kin of the victims of Flight MH17 allege that Russia, through its involvement in the downing and its disinformation campaign and refusal to investigate or cooperate with the international investigation after the crash, violated their human rights. A first application under the name of Ayley and Others v. Russia was lodged on 6 May 2016. A second application, Angline and Others v. Russia, was lodged two years later on 23 November 2018. The Court has joined these two applications and will analyze them together. There have moreover two other applications regarding MH17 been filed that have not been communicated: Bakker and others v. Russia and Warta and others v. Russia. In addition to these applications concerning MH17, there have been many other applications lodged that all require a determination of the role of Russia in Eastern Ukraine, to determine whether Russia has/had jurisdiction in accordance with article 1 of the ECHR. Article 1 ECHR is further discussed below, in the section on the merits stage of the proceedings.
.png)
This question needs to be answered not only for the individual applications related to MH17, but also lies at the core of the inter-state cases that Ukraine submitted against Russia at the ECtHR. Moreover, in July 2020, the Netherlands also brought an inter-state application against Russia for its involvement in downing MH17 and failing to investigate, to support the next of kin before the ECtHR. On 27 November 2020, the ECtHR decided to join the inter-state application of the Netherlands with the inter-state applications of Ukraine against Russia. Russia's alleged responsibility for MH17 is therefore considered when the Court will consider the applications of Ukraine and The Netherlands against Russia. The inter-state applications are discussed in chapter 4.
The joined inter-state applications have been referred to the Grand Chamber of the ECtHR. The involved states are asked to respond in this inter-state application first, after which the Grand Chamber will take a decision related to the role of Russia in the Eastern Ukraine conflict. It is expected that the ECtHR will then proceed with the individual applications.
The main actors in the individual applications proceedings are the applicants (victims of human rights violations) and the state against which the complaint is made. However, non-governmental organizations or uninvolved states with an active interest in the case can give written opinions on the matter in so-called “third-party interventions.” In the MH17 proceedings before the Court, the Dutch government has announced that, in addition to the inter-state application against Russia, it is planning to support the next of kin’s case with their views, legal analysis, and evidence drawn from its own inter-state application against Russia in the form of a third-party intervention.
Individual proceedings before the ECtHR consist of two stages: the admissibility stage and the merits stage. During the admissibility stage, the ECtHR verifies that the case concerns a human rights violation under the ECHR and that it conforms with the rules of admissibility of the Court. Most cases are rejected during this phase. The ECtHR evaluates whether there has been an actual violation only in cases that move on to the merits phase.
In the first stage of proceedings, the Court identifies whether it is allowed to examine the allegations of human rights violations. The Court may pose questions to the applicant and the respondent state to help it evaluate whether the case complies with its rules of admissibility. As a general rule, only the victims of human rights violations may apply to the Court. For the ECtHR, not only the so called “direct victims” are considered victims but also “indirect victims:” relatives of a victim, or those who “have a valid and personal interest” in the application. For the MH17 proceedings, the next of kin of the victims, therefore, need to show the Court their family ties to the victim and how the downing of the airplane affected them. Beyond this general principle there are two other procedural requirements that are relevant in the MH17 applications: the exhaustion of domestic remedies rule and the six-month rule.
Exhaustion of Domestic Remedies
The ECtHR only deals with cases in which the national judicial system has failed to respond to a human rights violation. The exhaustion of domestic remedies rule requires applicants who want to bring a claim before the ECtHR to first go through all levels of the national legal system of the state that has allegedly violated their rights. In principle, the applicant can only complain to the ECtHR if all available options at the national level failed to prevent or remedy the human rights violation the applicant suffered. This way, the ECHR provides that states should first get the opportunity to resolve the situation, rather than allowing individuals to instantly go to the ECtHR. This is also important to manage the Court’s caseload.
However, this is not a strict rule and the ECtHR has emphasized that it needs to be applied with flexibility. There are thus several exceptions to it. Importantly, national courts have to be accessible and capable of addressing the violation that a victim complains about, providing a realistic possibility of success. The respondent state has to prove that its national courts were capable of fulfilling these criteria. If the government’s arguments convince the Court, the victims then have to prove that they tried all national options that were available to them or that they were not effective because in practice they did not provide a realistic possibility of success. Remedies that can only provide redress in theory do not count. In its evaluation of this rule, the ECtHR will also consider “the general legal and political context in which [the national courts] operate as well as the personal circumstances of the applicant.” However, the fact that victims do not live in the state against which they complain, does not exempt them from exhausting available remedies. Overall, the Court evaluates on a case-by-case basis if national means to address a violation were in fact used to the extent that can be expected.
The Court may also decide that issues regarding the access to the national court system are part of the human rights complaint. In such a case, it may decide to examine the exhaustion of domestic remedies in the merits stage.
Six-Month Rule
The six-month rule provides that applications to the ECtHR need to be made within six months from the final decision in the domestic proceedings. If the ECtHR grants an exception to the rule of exhausting domestic remedies, the six-month rule will still apply. For the starting date of the six-month period the Court will then use “the date on which the act complained of took place or the date on which the applicant was directly affected by or became aware of such an act or had knowledge of its adverse effects.” The MH17 applications before the ECtHR started later than six months after the downing of the flight. To comply with the six-month rule, the applicants will have to prove that they only realized at a later point in time that Russia was not conducting a proper investigation, and was not cooperating with the international investigation.
If the chamber finds that the application is admissible, it will inform the government of the state against which the complaint is brought. At the same time, the ECtHR invites the government to give an initial opinion on the case. The applicants who brought the case can then respond to the government’s opinion.
If a case is considered admissible, it moves to the merits stage. In this phase, the ECtHR evaluates the actual human rights complaint and will decide whether there was a violation. The Court may still reject a case in this phase, if it concludes that there is no violation of human rights or that the consequences for the victim or victims were too insignificant. This subsection discusses the provisions that will be discussed during the proceedings.
Article 1 – Jurisdiction
Jurisdiction determines the limit of authority of powers. Article 1 ECHR provides that states parties shall protect the rights enshrined in the ECHR of everyone within their jurisdiction. Jurisdiction is usually connected to the territory of a member state. However, one of the exceptions to the general rule that jurisdiction is limited to a state’s own territory is when a state exercises “effective control” over an area outside of its national territory. This depends on the extent to which a state has influence and control over an area through its military, economic, financial, political, logistical or other types of support. If Russia has at least had “decisive influence” over the fighters in Eastern Ukraine, Russia would have had "extraterritorial" jurisdiction. Whether the evidence on Russia’s involvement in Eastern Ukraine will suffice for the ECtHR to decide that Russia had jurisdiction when MH17 was downed, will first be part of the inter-state proceedings against Russia that will precede the individual applications. In the individual proceedings, this issue is highly relevant as well, and the Court will then likely refer to what the Grand Chamber will have decided on this matter.
Article 2 – The Right to Life
Article 2 ECHR protects the right to life. Generally, states are required to protect life where they can and refrain from acting or failing to act that leads to loss of life. Additionally, states have to effectively investigate the deaths of individuals and, where possible, prosecute those responsible for loss of life where crimes were committed, as well as take action to prevent recurrence.
The Court will first examine the precise role of Russia in Eastern Ukraine and with regard to the BUK missile that allegedly downed MH17. If the Court is convinced that Russia had jurisdiction in Eastern Ukraine (on the basis of having had at least a “decisive influence” over the separatist forces) and/or was involved itself in downing MH17 through its own state actors or those working very closely with them (with “overall control” over the separatist forces), the ECtHR may well find that Russia has violated article 2.
First, article 2 would be violated if Russian state agents have used force against MH17 and Russia cannot demonstrate that they have taken all feasible precautions in the choice of means and methods to prevent loss of civilian life when launching the BUK.
Second, Russia may also be found in breach of article 2 if the Court finds proven that Russia provided the BUK and that Russia was aware that civilian aircraft was using the airspace over Eastern Ukraine yet failed to prevent loss of civilian life by notifying airliners and/or other state authorities of the danger for civil aviation. Article 2 obliges Russia to have an effective legislative and administrative framework to prevent loss of civilian life and to also deter others from bringing down civil aircraft.
Third, article 2 also includes the procedural obligation for Russia to conduct effective investigations into possible infringements based on allegations that Russian state agents were involved and that the Russian military delivered the BUK. If the Court concludes that Russia has not effectively investigated themselves, not cooperated with the international investigation or even hindered it, this would be an additional violation of article 2.
Article 3 – Inhuman or Degrading Treatment
Article 3 ECHR provides the prohibition of torture and inhuman or degrading treatment or punishment, which are acts that cause the victim physical or mental suffering. For physical or mental harm to become a human rights violation, the suffering has to reach a certain level of severity.
To qualify as torture, the intensity of the suffering it causes has to be high, done on purpose, and with the aim of getting information or punishing the victim. This does not apply to the MH17 situation.
However, the applicants have asked the Court to consider that the conduct of Russia in the aftermath of the crash qualifies as inhuman or degrading treatment, in particular by not properly cooperation with the investigations, by providing incomplete and contradictory information and denying its knowledge and involvement. The Court will usually consider that the anguish following from a state’s failure to admit and to conduct investigations is an article 2 violation as a logical consequence from failing to investigate, and not a separate article 3 violation. However, in the MH17 case, the Court may consider that the subsequent attitude of Russia in denying its involvement and undermining the investigations, if those acts are proven, continues to cause additional suffering beyond that of having lost a loved one.
Article 13 – The Right to an Effective Remedy
The right to an effective remedy guarantees that violations of other human rights are properly addressed by the authorities of a state. States have to investigate violations of human rights, identify those that violated the rights, and, when necessary, provide compensation and punish the perpetrators. In essence, the right to effective remedy ensures that there are mechanisms available to victims that allow them to effectively identify and repair violations of their human rights.
In the MH17 cases, the Court will need to decide whether Russia has violated article 13 by not having conducted an effective investigation and therefore not being able to provide for an effective criminal law remedy to hold the perpetrators accountable for their crimes. In its caselaw, the Court has determined that when the complaint concerns articles 2 and 3, as it does in MH17, having only the option to seek an award of damages through civil law is insufficient as a remedy and requires a criminal investigation and prosecution.
Moreover, the Court may consider whether the continuous denial by Russia of its involvement is in itself also a violation of article 13 because this attitude generates a lack of confidence in a fair trial and effective remedy by Russia among the next of kin.
The applicants moreover argue that Russia has violated the respect for their family life (article 8) and the right to a fair trial (article 6). The Court may consider these as separate violations, but may also decide that those aspects do not amount to separate violations of articles 8 and 6, but are included in the complaints of articles 2, 3 and 13.
In 2020, there were 1789 cases in which Russia had not (yet) implemented an ECtHR judgement. In 2015, Russia changed its national law regulating their Constitutional Court. Under the new law, successful applicants before the ECtHR have to request the enforcement of judgments before the Russian Constitutional Court. The Constitutional Court of Russia will decide on “the possibility or impossibility to enforce” a judgement based on a consideration of whether “Russia’s interests” were protected. A further amendment from November 2020 extended this power of the Constitutional Court to all judgements by foreign or international courts. In practice, this means that even if the Court decides that Russia has violated the human rights of the next of kin of the MH17 victims, the Russian Constitutional Court may decide that the judgment does not conform with the Russian constitution or Russian interests. There is then very little to do in terms of enforcement then since the ECtHR does not have any means of enforcement.
This Russian law in which its national court may decide on the applicability of an international ruling seems to be in violation of international law. Article 27 of the Vienna Convention on the Law of Treaties provides that states cannot invoke their national law to justify its failure to perform its treaty obligations. As a state party to the ECHR, their treaty obligation under the ECHR is to execute the judgments of the ECtHR. However, in absence of effective enforcement mechanisms under international law, there are limited means to enforce compliance.
Nevertheless, the judgment is published and offers acknowledgement and an authoritative judgment to help persuade global public opinion and other states to add pressure to come to a resolution of the dispute.
The most obvious interaction of the individual applications at the ECtHR is with the inter-state applications that Ukraine and the Netherlands lodged against Russia. Whatever will be decided in the inter-state application will affect the individual applications, in particular the Court's assessment on the exact role of Russia in Eastern Ukraine and the legal analysis relating to overlapping legal questions.
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 stated 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.
Because the ECtHR has knowledge of the information that is shared by the Netherlands and Ukraine in the inter-state proceedings, this information may also inform the Court when deciding the individual applications. Specifically, this occurs through the third-party intervention that the Netherlands has announced it will bring in the individual applications, thereby sharing its views, legal analysis and evidence with the Court to help it decide in the case of the next of kin against Russia. Vice versa, Stichting Vliegramp MH17 (a foundation that represents the next of kin) and the lawyers in the individual applications at the ECtHR (Ayley, Angline, Bakker and Warta applications) have jointly submitted a third-party intervention in the inter-state application of the Netherlands, strengthening that case by demonstrating the suffering caused by the downing of MH17 and Russia’s actions since.
Furthermore, if other judgements by other court proceedings are delivered before the individual applications at the ECtHR are decided, they would not have the value of a formal precedent but may be regarded as authoritative by the ECtHR. Another judgment would not be leading for the ECtHR and would be a judgment on different legal norms, but could be regarded similar to an item of information or evidence. This will also be the situation with any ruling that comes out of the ECtHR: they are not formal precedents that other courts need to follow but they would usually be regarded as authoritative statements on overlapping issues related to facts and evidence. However, a court should always be careful not to overreach its own mandate. The ECtHR can only examine ECHR rights and thus the role of Russia related to any outcome of any other proceedings, and not the criminal or civil liability of others.
On the interaction of compensation awards, see chapter 7.
