Insight: “Inter-State human rights litigation: Russia sued by the Netherlands in MH17 case” by Dolores Utrilla
The Dutch Government has decided to file an inter-State complaint against Russia before the European Court of Human Rights (ECtHR) under Article 33 of the European Convention on Human Rights (ECHR) for the downing of Malaysian Airlines flight MH17 over Donbas, eastern Ukraine, on 17 July 2014, which resulted in the death of all 298 people on board, most of whom were citizens of the Netherlands.
In a public statement last Friday, the Dutch Government announced that it is sharing all available and relevant information about the downing of flight MH17 with the ECtHR and that it would notify the UN Security Council of its application, while expressing its willingness to continue meetings with Russian authorities regarding the issue of state responsibility for the MH17 disaster.
This is a highly significant step not only from the perspective of ECHR law, but also for the implementation of United Nations Security Council (UNSC) Resolution 2166 (2014), which stressed the need for a full, thorough and independent international investigation into the incident in accordance with international civil aviation guidelines, and expressed grave concern at reports of insufficient and limited access to the crash site.
To better understand what this pending inter-State complaint means, account must be taken of (i) the background and context of the case, as well as of (ii) its relationship with pending individual applications regarding the MH17 downing and (iii) the meaning and legal framework of inter-State cases under ECHR law.
(i) Background of the case
On 17 July 2014, Malaysia Airlines flight MH17 took off from Amsterdam for Kuala Lumpur with 283 passengers (most of them of Dutch nationality) and 15 crew on board. At 3.20 pm CET, the aircraft, when flying over eastern Ukraine, disintegrated in the air, and everyone on board was killed.
The Dutch Safety Board launched an investigation into the disaster in accordance with the international requirements and methods set out in the Convention on International Civil Aviation, with the agreement of Ukraine. In October 2015, the investigation’s final report was released, concluding that the plane had been hit by a missile launched from a Buk surface-to-air missile system from somewhere in an area of eastern Ukraine.
A parallel criminal investigation was launched by the so-called Joint Investigation Team (JIT), comprising a team of police officers and public prosecutors from Australia, Belgium, Malaysia, the Netherlands and Ukraine. Although the investigation is still ongoing, it concluded on a preliminary basis in 2016 and in 2018 that flight MH17 had been shot down by a Buk missile, fired from a field in the area of Pervomaiskyi, controlled at the time by pro-Russian separatists. According to these preliminary findings, the missile was launched from equipment brought from Russia and belonging to the Russian armed forces.
Based on the JIT’s findings, in May 2018 the Governments of the Netherlands and Australia declared that they held the Russian Federation responsible for the downing of flight MH17. In June 2020, the Dutch Public Prosecution Service decided to prosecute the four individuals, with the unanimous support of the investigative authorities in the other JIT countries. The criminal trial began on 9 March 2020. The Russian Federation has denied any involvement in the disaster and has blamed Ukraine for it.
On 16 January 2017 Ukraine sued the Russian Federation before the International Court of Justice (ICJ) with regard to alleged violations of, inter alia, the International Convention for the Suppression of the Financing of Terrorism. Ukraine requested that the ICJ establish that the the Russian Federation bears international responsibility, by virtue of its sponsorship of terrorism and failure to prevent the financing of terrorism, for the acts of terrorism committed by its proxies in Ukraine, including the shooting-down of Flight MH17. These proceedings are currently pending.
(ii) Individual applications
In essence, the applicants in these individual cases rely on Article 2 ECHR (right to life) to complain that Russia was responsible for their relatives’ deaths, either directly or through the acts of Russian separatists under their control. They further complain under Articles 2 and 3 ECHR (prohibition of inhuman or degrading treatment) that the Russian Federation failed to discharge its obligation to conduct an investigation into the death of their relatives and bring the perpetrators to justice, and that it also failed to cooperate with the investigations led by the Dutch Safety Board and the JIT in the Netherlands. Some of the applicants also raise complaints under Articles 6 ECHR (right to a fair trial), 8 ECHR (right to respect for private and family life) and 13 ECHR (right to an effective remedy).
On 3 April 2019, the ECtHR decided to make use of the communications procedure under Article 54 of its Rules of Court in respect of these individual applications and requested the Russian Government to submit observations.
The contents of the Dutch inter-State application will also be incorporated into the Netherlands’ intervention in these individual cases. However, it must be noted that, in the ECtHR’s practice, individual applications raising the same issues or deriving from the same underlying circumstances than a pending inter-State case are, in principle and in so far as practicable, not decided before the overarching issues stemming from the inter-State proceedings have been determined. Nevertheless, the ECtHR may decide to adjourn the pending individual applications to the inter-State case filed by the Netherlands, as it did in 2018 in the case Ukraine v. Russia.
(iii) Inter-State applications
Article 33 ECHR forms the legal basis for inter-State applications. The provision’s wording is very broad, setting out that ‘any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party’. This generous wording is accompanied by a flexible procedural framework for the processing of this kind of application. According to the ECtHR’s Rules of Court, the formalities for the lodging of an inter-State application (Rule 46) are much less strict than those set out for individual applications (Rule 47).
In spite of this, inter-State human rights litigation is a relatively residual matter under ECHR law in quantitative terms. According to the HUDOC Database, from 1953 to September 2019 a total amount of 24 inter-state applications had been lodged with the ECtHR. Interestingly, 10 out of these 24 inter-State applications (more than 20%) were filed against Russia (by Georgia and Ukraine) from 2007 onwards in sovereignty-related disputes. Seven of these cases are still pending at the ECtHR.
Irrespective of their quantitative volume, inter-State applications have a significant qualitative importance, for they have an impact for a large number of individuals and usually also important political ramifications (as explained here by Geir Ulfstein and Isabella Risini). Inter-State cases have been described by the former Commission of Human Rights as an essential component for the collective guarantee of ECHR rights, and as a tool decisively influencing the very structure of international law.
This explains why the Council of Europe in general, and the ECtHR in particular, have devoted specific attention to enhancing the processing of inter-State cases during the past years. This is one of the key points of the ECtHR’s reform process (conventionally referred to as the ‘Interlaken process’), as clearly shown by the April 2018 Copenhagen Ministerial Declaration. On 18 June 2018, the Plenary of the ECtHR adopted a set of Proposals for a more efficient processing of inter-State cases, which was then submitted to the Council of Europe’s Steering Committee for Human Rights (CDDH). No agreement was reached by the CDDH in its June 2019 meeting, and in November 2019 it set up a Drafting Group on effective processing and resolution of cases relating to inter-State disputes. The Drafting Group is expected to submit its proposals to the Committee of Ministers by 31 December 2021.
The use of the inter-State channel by the Netherlands in the MH17 case is of particular interest because of the challenging nature of the establishment of the facts in this kind of ECtHR cases. Usually, the Strasbourg-based court addresses the factual grounds of inter-State applications by assessing whether the existence of an ‘administrative practice’ within the meaning of Convention can be established. In another inter-State case, Georgia v Russia (I), the ECtHR’s Grand Chamber made clear that an administrative practice comprises two elements: the ‘repetition of acts’ and ‘official tolerance’ (para. 122). The ‘repetition of acts’ is described by the ECtHR as ‘an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected not to amount to merely isolated incidents or exceptions but to a pattern or system’ (para. 123). The ‘official tolerance’ means that ‘illegal acts are tolerated in that the superiors of those immediately responsible, though cognisant of such acts, take no action to punish them or to prevent their repetition; or that a higher authority, in face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied’ (para. 124). It is thus apparent that while the ‘official tolerance’ test may be relevant in the MH17 test, the exceptional nature of the disaster to which the inter-State application refers renders the ‘repetition of acts’ criterion inadequate to examine the case. The Dutch complaint thus offers the ECtHR an opportunity to further develop its criteria for establishing the responsibility of States for breaches of ECHR law in inter-State conflicts.
Another interesting feature of the Dutch-Russian case is the existence of the above-mentioned pending case Ukraine-Russia before the ICJ. It must be recalled that Article 35(2)(b) ECHR, which sets out that the ECtHR must not deal with any individual application where it has already been submitted to another procedure of international investigation or settlement, does not apply to inter-State cases. As is well known, this is one of the reasons why the Court of Justice of the European Union found in its Opinion 2/13 that the inter-State application procedure before the ECtHR amounted to a threat to the autonomy of EU law, thereby precluding accession of the EU to the ECHR. Later, the 2018 Proposals for enhancing the processing of inter-State cases included a recommendation for the ECtHR to remain within the confines of its jurisdiction and as far as possible avoid encroaching upon that of other international bodies. It remains to be seen whether the pending application at the ICJ deploys some influence on the way the ECtHR handles the Dutch-Russian casse.
Dolores Utrilla is Assistant Editor at EU Law Live and Associate Professor at the University of Castilla-La Mancha.