Judge Mykola Gnatovskyy: The ECHR Judgment Against Russia Is the History of This War, Which Has Legal Force

In early July this year, the European Court of Human Rights found Russia guilty of numerous human rights violations during its aggression against Ukraine since 2014, after considering a large interstate case brought by Ukraine and the Netherlands. This included the downing of flight MH17 in the Donetsk region on 17 July 2014 – the Court found that Russia had violated the right to life of all 298 people on board.

“If Russia had been [in the ECHR], it would have been an entirely different reality. And there would have been no full-scale war of destruction. Russia participated in the Council of Europe and actively presented its arguments in previous cases when it conducted hybrid or short-term operations in other countries. But now, as they say, the masks have come off,” commented Ukrainian Judge Mykola Gnatovskyy on the Russian Federation’s refusal to communicate with the ECHR.

According to him, the decision in this case will unblock the consideration of individual complaints related to the war in Ukraine.

Whether the procedure for considering complaints and making decisions would have changed if Russia had been present in the Court; why it is irrelevant how non-state armed groups in eastern Ukraine were referred to – as “separatists” or “pro-Russian forces” – for the purposes of determining whether a violation had occurred; and what role the judge from the respondent state played during the discussion of the decision, – in an interview with Mykola Gnatovskyy for Watchers.

This is a historic and critical decision in the largest interstate case in the history of the ECHR. This is how the decision in the case of Ukraine and the Netherlands v. the Russian Federation can be briefly described. Please tell us how important it is.

The decision is so multifaceted that it is challenging to summarise it briefly or define a single position. The Court’s Secretariat has attempted to do so by preparing a press release and a short Q&A.

I will offer my answer to the question of why this decision is important. It does not claim to be the only correct one because everyone can find something in this decision that is most important to them personally.

For me, this decision is unique in international law because the European Court of Human Rights assessed the events of an ongoing armed conflict. This is even though the period to which these assessments relate is limited to the date when the Russian Federation ceased to be a party to the European Convention on Human Rights – September 16, 2022.

It is extremely unusual for international judges to have jurisdiction to answer questions about an ongoing war. It is even more unprecedented for a decision to be made on a war of this scale, which is unprecedented in Europe since the Second World War, i.e. in the past 80 years.

The Court has certainly answered questions about the conflict from the perspective of the obligations assumed by the parties to the European Convention on Human Rights, but this legal analysis could not be separated from what is happening today.

Therefore, this decision goes beyond a mere finding of violations of the Convention, even considering the systematic nature of such violations and their connection with state policy. In this decision, the Court, so to speak, looks at the root of the problem. It does not shy away from the obvious fact that all the established practices of systematic non-compliance with the Convention are the result of the aggressive war that Russia is waging against Ukraine.

The Court begins with the question: why is the Convention necessary at all? So that there can be peaceful life in Europe, so that Europe can consist of states that have agreed to be democratic, to respect human rights and to be governed by the rule of law. This is the foundation for peace. And now peace has been violated, violated on a large scale and systematically.

The court finds that the respondent state is pursuing a policy of destruction, denying another sovereign state the right to exist. And this policy comes at a huge cost to people whose fundamental rights are being violated at every turn. The right to life, the right to dignity and the right not to be subjected to torture, the right to freedom, the right to privacy, the right to property, and so on, including the policy of eradicating the Ukrainian language in schools… The Court was able to give a reasoned answer to all of Ukraine’s complaints.

Last year, the same unanimous decision was made regarding Crimea. This was the first unanimous decision of the Grand Chamber on the merits of an interstate case. In the case of Ukraine and the Netherlands v. Russia, there were significantly more questions before the court.

The Court found international legal responsibility for violations of the Convention in all possible manifestations. The Court also considered Russian propaganda, which is part of the aggressor’s policy to hide the truth behind a stream of lies. In doing so, the ECHR analysed a huge amount of material…

How much approximately?

The primary materials of the case itself amount to tens of thousands of pages. The decision itself is 500 pages long, with another 2,500 pages of appendices. This is not a race for volume; on the contrary, we tried to be as concise as possible. But it was important not to compromise on quality to provide a complete picture, confirmed by the ECHR as an international judicial institution, based not only on the statements of the applicant states, Ukraine, and the Netherlands, as well as 26 states that joined the case as third parties, but also on numerous reliable reports from those who conducted the relevant investigations on the ground. These include international investigative commissions of the UN and the OSCE, international and national non-governmental organisations, other observers and investigators, whose information and conclusions are beyond doubt.

I can say that this decision of the ECHR is undoubtedly a confirmed part of the history of this war, it has legal force and will have consequences for those responsible.

To a certain extent, it is also moral satisfaction for Ukrainians who have suffered or are suffering from violations of their rights. The determination of ‘fair satisfaction’ in financial terms still lies ahead.

It was sad to see the empty chairs of the defendants – the Russian Federation – during the announcement of the ECHR decision. It seemed that no one would be punished. Russia has long failed to comply with decisions, including those of the ECHR, and, judging by the decision, has withdrawn from communication with the court on this case, although it showed interest at the beginning of the proceedings. In this context, do you think it will be possible to enforce the decision?

Yes, the empty chairs make a depressing impression. Even though the respondent state participated very actively in the proceedings concerning the applications relating to the events from February 2014 to spring 2022. And even then, it had every opportunity to respond to the arguments of Ukraine and the Netherlands, and it did so. It only broke off communication with the Court in the spring of 2022.

The participation of a party in the proceedings is always desirable. However, that party cannot, through its sabotage and unwillingness to cooperate, deprive others of justice. It cannot override the jurisdiction of an international court. This is all the more so given that Article 38 of the European Convention on Human Rights obliges the state to cooperate with the Court.

It is clear that it would be much easier for everyone to work with a state that at least continues to try to remain civilised and respect international law, and not only in the context of court proceedings. However, the absence of Russian representatives at the ECHR during last year’s hearing of this case will not affect the weight of this historic decision. As for the participation of a Russian judge, this position has not existed in the ECHR since the Convention ceased to be in force for Russia; the position itself simply disappeared. Accordingly, the person returned to Russia, where he was appointed a judge of the Constitutional Court. 

However, the ECHR had to continue hearing the case. Thus, an ad hoc judge from the Court was appointed to perform the so-called functions of a ‘national judge’ regarding the respondent State.

I would like to emphasise that in the ECHR, a judge is not a lawyer for the state from which he or she is elected. He or she performs a service function, assisting colleagues in the relevant formation of the court, in this case the Grand Chamber, in finding answers to possible questions of domestic law. It is clear that the Court Secretariat has lawyers who are familiar with the legislation of the States Parties to the Convention, but when the Court is in what is known in Ukraine as the ‘consultation room’, where no outsiders are present, the judge of the State concerned may clarify the legislation and judicial practice of his or her State.

Regarding punishment, the ECHR decides on a single issue: whether the state has complied with the Convention in relation to the situations complained of by the applicant. In this case, Ukraine and the Netherlands complained on behalf of all those whose rights had been violated. And the responsibility of the state has been established. Whoever sits at that table… In this sense, there is no difference.

Regarding the implementation of the ECHR decision… It may sound paradoxical, but at this stage there is not much to implement. There are two specific measures that the Court is currently requiring the respondent state to take to comply with the decision. These are the return of people who are being held in conditions of deprivation of liberty, i.e. prisoners, and the return of children.

Once the decision has been taken, its implementation is the responsibility of the Committee of Ministers of the Council of Europe. As the highest political body of the Council of Europe, it must take the measures it considers most appropriate from a political standpoint to ensure that the Court’s orders are complied with.

The next step will also be for the Court to determine compensation, and this will take place in connection with the activities of the Register of Damages and the compensation mechanism, which is currently being established. Of course, if Russia ever hypothetically wants to return to the family of civilised European nations, it will not be able to do so until it has fully assumed responsibility for the violations established in the ECHR judgments. In particular, until it has paid all compensation. This is currently an open question.

Professor of international law, Marko Milanović, describes this decision as ‘as good as it can be (almost)’. He also says that if Russia had been active in this communication, the court would have taken longer to consider the case, as it would have had to respond to all the positions presented by the Russian Federation.

I have read Mark’s analysis, which consistently amazes me with its speed and depth. He is one of the best experts in this field.

Perhaps if Russia had challenged every conclusion, it would have taken a little longer. But it is not enough for the respondent state to simply say that it disagrees. It must provide convincing explanations. And that is difficult to do when there is an objective reality.

If Russia had been there (in the ECHR – W), it would have been an entirely different reality. And there would not have been such a full-scale war of destruction. Russia participated in the Council of Europe and actively presented its arguments in previous cases when it conducted hybrid or short-term operations in other countries. But now, as they say, the masks have come off.

At the same time, if one side ‘drops out,’ this does not mean that the court automatically accepts all the arguments of the other side. Not at all. All arguments are evaluated quite critically.

What does it mean to hold Russia responsible for the downing of MH17 in this complaint?

MH17 is, of course, a gigantic tragedy. It is one of the turning points in the war. I felt this obviously on 17 July 2014, in the afternoon, while in hot Kyiv, when it became clear that the plane was a passenger plane.

But on the other hand, it is only one episode of the war. It is shocking, very revealing, but only one episode.

The court concluded, in particular, that there was an organic link between the actions of the Russian armed forces and the armed separatists of the ‘DPR’ and ‘LPR’ and the Russian Federation.

It does not matter who gave the order to shoot down MH17 or who pressed the button that launched the missile, whether it was a separatist or a Russian soldier or official – in any case, it was Russia that did it. The court also repeatedly states that Russia has consistently lied about the downing of MH17, and that from the first days after the downing of the aircraft, the government of the respondent state spread disinformation about the cause and circumstances of the disaster. As a result, any assumption that the facts can be established and that the responsibility of Russian officials can be determined in civil proceedings in Russia can only be described as fantasy. This wording is unusual for ECHR case law.

Yes. The decision is also interesting in that the court answered whether this was a war crime. What if those who fired thought that the aircraft in the sky was a Ukrainian military transport plane? The court ruled that it did not matter. In this case, there was a violation of the right to life. ‘Russia did not take any measures to ensure accurate verification of the missile’s target or to preserve the lives of those on board, demonstrating a disregard for civilians who were at risk as a result of its hostile actions,’ the ruling states.

At this point, we can talk about moral satisfaction for Dutch society and the relatives of the victims. As for compensation, the Netherlands’ claim will be considered separately from the issue of compensation in Ukraine’s claims.

I think it is good that the Netherlands stood with Ukraine and that the court considered this case together because they belong to the same context. But what I do not like, and I want to emphasise this, is that some media outlets are presenting the entire decision as a decision in the MH17 case, and Ukraine is not mentioned there. It is clear that MH17 is only a small aspect of the issues resolved by the Court in relation to Ukraine in this case.

I remember when the tragedy of the downing of MH17 occurred, there were many doubts because the international community did not understand how to classify this conflict. Some called the people who took part in the fighting in the East separatists, others called them terrorists or militants. Unfortunately, it took so long for the ECHR, in particular, to recognise what Ukraine had been saying all along: that there were no separatists who had united on their own to declare independence, and that all of this was supported by the Russian Federation.

You see, it’s not a question of terminology. The ECHR’s decision uses the terms ‘separatists’ and ‘pro-Russian forces’… Why? Because that is what they were called. But it is not important, even if they were ‘pro-Mars forces.’ What matters is that the Court established that the Russian Federation has been responsible for these non-state armed groups from the very beginning. And the conflict has clearly become international.

Plus, I must say that Ukraine has long supported a narrative that has never been in its interests. The very idea of declaring an ‘anti-terrorist operation’ was questionable, as we can see after all these years. Although, perhaps, at the time it seemed that the situation would somehow improve and that it might not be necessary to use established international terms. This understanding comes with time, with the course of certain events.

In the ECtHR Judgment Georgia v. Russia (II), the period of active hostilities from 8 to 12 August 2008 was singled out, and the court did not find Russia to be in violation. ‘The very reality of armed confrontation and combat operations between opposing armed forces seeking to establish control over territory in conditions of chaos implies the absence of control over that territory,’ the judgment states. It is also relevant in this case that most of the combat operations took place in areas that were previously under Georgian control. Were there similar discussions about the events in Donbas in 2014?

In fact, the ECHR has always taken a fairly sober approach to establishing the responsibility of a foreign state for various types of unrecognised territorial entities. In this sense, it has formed its position on Transnistria, South Ossetia and Abkhazia.

The difference with the decision in Ukraine and the Netherlands v. Russia lies in the fact that, due to Russia’s completely overt actions, the Court had no problem attributing international legal responsibility directly to Russia for the actions of the so-called ‘LPR’ and ‘DPR’ as its organs from the very beginning.

Furthermore, regarding Russia’s active hostilities against Ukraine, the Court rejected even the possibility of talking about any ‘chaos’ – everything had been planned too long and too carefully by the respondent state, and therefore it could not but bear responsibility for the violations of the rights of the people affected by its attempt to deny Ukraine’s right to exist independently by military force.

During the open hearings and in the decision itself, the very moderate or even concerned position of France, and especially the United Kingdom, is quite evident, probably because the ECtHR’s decision may apply to other similar conflicts, right?

Yes, the concerns of states involved in military operations outside their borders that the ECHR’s decision in the case of Ukraine and the Netherlands v. Russia would extend to other conflicts were openly expressed. The position of France and, in particular, the United Kingdom differs significantly from the attitude of other European states towards the issue of jurisdiction under the Convention.

I think it is difficult to predict to what extent this decision will be useful for other situations in terms of jurisdiction because the Court still emphasises the uniqueness of the Ukrainian situation, the unprecedented nature of an aggressive war on the European continent aimed at destroying another state. It is difficult to imagine, even hypothetically, that any of the states that have expressed concern would wage a similar war. Therefore, I doubt that the conclusions of this decision, specifically in terms of extraterritorial jurisdiction, are automatically applicable to other situations.

The Court is currently considering Ukraine’s interstate applications against Russia and several individual applications concerning events in Crimea, eastern Ukraine and the Sea of Azov, as well as Russian military operations on the territory of Ukraine since 24 February 2022. How will this decision affect their consideration?

This decision, like the decision on Crimea, has opened the way for the Court to rule on the merits of individual complaints covering the same events. There are thousands and thousands of cases. There are applications against Russia, against Ukraine, and against both states. There are applications relating to the events of 2014-2015, and some relating to 2022. The Secretariat is working tirelessly to ensure that their examination is not delayed. I hope that starting in the second half of this year, the Court will take decisions on them.

As for interstate cases, two of them have been resolved on the merits. These are Ukraine v. Russia regarding Crimea and Ukraine and the Netherlands v. Russia. These cases are moving on to the stage of fair satisfaction.

There are two more interstate cases brought by Ukraine against Russia regarding the incident in the Kerch Strait in 2018 (On 25 November 2018, Russians in the Kerch Strait attacked and seized three Ukrainian ships: two armoured artillery boats Berdyansk and Nikopol and one harbour tug Yany Kapu. The occupiers also took 24 sailors captive. They returned home in autumn 2019, and the ships were handed over in a plundered state – W), as well as the case concerning Ukraine’s allegation that Russia uses political assassinations abroad as an administrative practice (On 9 February 2021, Ukraine submitted an interstate application against the Russian Federation regarding its organisation of a series of high-profile assassination attempts and contract killings both on the territory of Ukraine and on the territory of member states of the Council of Europe – W). These two cases are linked, meaning that the respondent state must respond. Then, accordingly, the applicant state will submit its comments, and the court will proceed to adopt a decision. At present, it appears that these cases will be examined in a Chamber of seven judges, rather than the Grand Chamber of the ECHR. However, nothing prevents the Chamber from deciding to refer them to the Grand Chamber.

According to the latest statistics, there are 7,700 complaints against Ukraine pending before the ECHR, compared to 10,500 three years ago. However, two-thirds of the total number of complaints against Ukraine are cases related to the armed conflict, where Ukraine is the respondent or one of the respondents.

A few years ago, various media outlets reported that lawyers from Russia and the occupied territories were systematically filing thousands of applications to the ECHR against Ukraine on behalf of residents of the occupied Donbas. Can the court notice this, and what is happening with these complaints now?

Yes, there have been such cases, and a significant number of them are awaiting consideration. However, this number has been significantly reduced as a result of consolidation, inadmissibility, etc.

Once the interstate case has been resolved and the Court has an understanding of the chronology of events and responsibilities, I think all cases related to the war will be resolved more quickly.

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