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MH17 case against Russia is admissible, European court rules

January 25, 2023

The European Court of Human Rights has ruled that complaints against Russia from Ukraine and the Netherlands should go to trial. They pertain to the 2014 downing of commercial airline Flight MH17, among other things.

Judges and investigators inspect the wreckage of Flight MH17. In the image of the severely damaged cockpit area of the plane, one official is visible through the gaps in the fuselage, inspecting the plane from within.
The ECHR ruled that Russia can be held responsible for activities in contested eastern Ukrainian regions prior to its full scale invasion last yearImage: Peter Dejong/AP Photo/dpa/picture alliance

The European Court of Human Rights on Wednesday decided that complaints from Ukraine and the Netherlands against the Russian Federation, pertaining to activities in contested eastern Ukraine prior to Russia's full-scale invasion last year, should be heard at trial. 

The decision is a procedural one that does not speak to the merits of the cases, only their admissibility. But it does show that the court based in Strasbourg believes Russia can be held liable for human rights violations in the breakaway regions of eastern Ukraine from as early as 2014.

Probably the highest-profile component of the case is the Netherlands' complaint over the shooting down of the Malaysian Airlines Flight MH17 commercial airliner over eastern Ukraine in July 2014. In total, 298 people were killed; 193 of them were Dutch citizens. 

What did the court decide? 

"Among other things, the Court found that areas in eastern Ukraine in separatist hands were, from May 11, 2014 and up to at least January 26, 2022, under the jurisdiction of the Russian Federation," the court wrote in a press release concerning the decision. "It referred to the presence in eastern Ukraine of Russian military personnel from April 2014 and the large-scale deployment of Russian troops from August 2014 at the latest." 

Russia had argued that the breakaway regions, identifying as the Donetsk People's Republic (DPR) and Luhansk People's Republic (LPR), were under the control of Ukrainian separatist forces at the time. It had flatly denied involvement either in attacks in eastern Ukraine — the basis of Ukraine's complaints to the court — or the Boeing 777 being shot out of the sky.

The court found that Russia "had a significant influence on the separatists' military strategy, that it had provided weapons and other military equipment to separatists on a significant scale from the earliest days of the 'DPR' and 'LPR' and over the following months and years." 

The court held that there was "sufficient evidence to satisfy the burden of proof at the admissibility stage" for "the majority of the complaints by the Government of Ukraine." 

"Likewise, the evidential threshhold for the purposes of admissibility had been met in respect of the complaints of the Government of the Netherlands," the ECHR said. 

Ministers in the Netherlands welcome the verdict

Dutch politicians were quick to welcome the ECHR decision. 

"Very good news: the judgment of the European Court of Human Rights is another important step in finding the truth and justice for the victims of flight MH17 and their relatives," Justice Minister Kilan Yesilgoz-Zegerius wrote on Twitter. 

Foreign Minister Wopke Hoekstra commented on the judgment in English. He called the decision "an important milestone and the first time that an international court has ruled on this matter." He also said it was a "clear signal to Moscow." 

"We will continue to do everything in our power to achieve justice for all 298 victims of flight MH17 and their loved ones," Hoekstra wrote.

The case can be heard, but will it have any impact in Russia? 

The ECHR is an international court of the Council of Europe, with 46 members and not to be confused with the 27-member EU of which Russia was never a part.

It hears cases against signatory states of the European Convention on Human Rights accused of violating one or more of the human rights enshrined in the Convention. Individuals, organizations or state governments — as in this case — are all eligible to file complaints under certain circumstances.

Russia was expelled from the Council of Europe last year as part of the international response to the invasion of Ukraine. It also ceased to be a member of the European Convention on Human Rights. But it was a member for the period at issue in this case. 

According to the Council of Europe, "the European Court of Human Rights remains competent to deal with applications against Russia concerning actions or omissions occurring up until September 16, 2022."

That said, for years the question of to what extent Russia reacted to ECHR rulings against it, if it reacted at all, had been at issue. The Council of Europe said when expelling Russia that "2,129 [ECHR] judgments and decisions have yet to be fully implemented by Russia and remain pending before the Committee of Ministers."

Wednesday's ruling that the region was effectively under Russian jurisdiction could open the door for other cases filed by Ukraine.

The next stage of the investigation at the ECHR will examine the merits of the cases, and could take a year or even two. 

Separate trial in the Netherlands concluded last year

Last November, in a separate trial in the Netherlands, two former Russian intelligence agents and a Ukrainian separatist leader were convicted in absentia for their roles in the plane being shot down.

Russia rejected the guilty verdicts as politically motivated and summoned the Dutch ambassador in response.

The chances of the convicted serving their sentences appears slim, at least at present. Them doing so would rely, assuming intelligence suggesting they are in Russia is accurate, on authorities in Moscow delivering them. 

msh/nm (AP, Reuters)