9 JANUARY 2023
On January 25, the European Court of Human Rights will announce its first decision in the interstate case “Ukraine and the Netherlands v. Russia” due to its occupation of part of the eastern regions of Ukraine.
International lawyers call this process “the big case on Donbas.”
The court’s verdict is already known: the ECtHR sets a date for a meeting only when the judges have already made a decision and the paperwork has been completed. The decision is interim. It determines whether the court has the authority to hear the case.
However, this decision on January 25 is beyond important for Ukraine. This article explains why
The “great Crimean case” against Russia passed this stage two years ago. Ukraine celebrated then its victory because it got the first decision of the international court, which proved the date of the occupation of the peninsula.
The Donbas case is much more complicated but there is every reason to count on Russia’s defeat.
Confidence is based on the fact that the Kremlin did a lot to lose a year ago, even before the big war against Ukraine.Therefore, the first decision of the international court on the 25th will legally confirm Russia’s status as an occupier since 2014 and determine the time and territorial framework of the proven Russian occupation in the East of Ukraine. As a result, this will have financial consequences for the Russian Federation when hostilities end.
How did Russia prepare to lose?
Ukraine and the Netherlands accuse Russia of violating 11 articles of the European Convention on Human Rights, from the right to life to the right to education.
Among the accusations are massive and systematic human rights violations in occupied by Russia Donbas, including murders, torture, destruction of property, etc., as well as the abduction and deportation of orphans with special needs to the Russian Federation.
The downing of MH17 by a Russian missile comes as a separate episode that Russia subsequently did not investigate.
Does this process make any sense now in times of a big war while Russia is committing even more terrible crimes? Yes, definitely. Victory in this case will become even more important for Ukraine after it wins the war and during the reconstruction of Donbas. Kyiv insists that it should be rebuilt at Russia’s expense.
Let’s find out where the confidence in Ukraine’s victory comes from.
On January 26, 2022, the oral hearings on the admissibility of the interstate case “Ukraine and the Netherlands v. Russia” were held in the European Court of Human Rights. Russia seemed to deliberately bring its defeat closer.
Russia’s government suspended the team of its Ministry of Justice from the process. It did not hire professional Western lawyers (professional circles claim certain consultations with some international lawyers, but they refused to defend Russia in this case).
One way or another, Russia defence at the ECtHR was entrusted to the Prosecutor General’s Office, which acted extremely unprofessionally. The prosecutor blatantly lied to the Court even when his lies were obvious. Those hearings ended with a round of questions from the judges, to which Ukraine, the Netherlands, and Russia had to provide written answers. However, after four weeks, Russia attacked Ukraine, breaking ties with the Western world.
Highly likely that’s why Russia did not send its answers to the Court’s questions to Strasbourg. This probably accelerated the proceedings – the ECtHR’s decision was made less than a year after the hearings.
However, experts predicted that it could last for two years or more.Russia withdrew from the Council of Europe last spring. Responding to brutal violations, the Committee of Ministers suspended the participation of the Russian Federation in the organisation. It was excluded soon from it altogether. According to international law, the Court retains the authority to complete the consideration of already started cases. In addition, the Russian Federation is responsible for violations committed until the fall of 2022.
What will the decision of the Court in Strasbourg change for Ukraine?
After considering the merits of the case, the ECtHR will surely confirm that Russia had violated those articles of the Convention, in respect of which Ukraine and the Netherlands had accused it.
What do we expect from the hearings in Strasbourg now?
First, this decision will finally answer the question of Russia’s role in Donbas from 2014 to 2021.
This will be the first decision of an international court to legally establish that Donbas was occupied by the Russian Federation (by the terminology of the Council of Europe – “was under the effective control of the Russian Federation”).
This means that claims regarding destroyed property, stolen businesses, looted factories could and should be addressed to Russia. The Ministry of Justice of Ukraine is sure that the Russian Federation will have to pay sooner or later.
Secondly, the ECtHR will establish timeframes and territories of the occupied regions.
If Ukraine’s overall victory is guaranteed, these details cannot be predicted. It stays most intriguing in the “big case on Donbas.” Ukraine’s victory will be the recognition by the Court that Russia controlled areas of Donetsk and Luhansk oblasts starting from April 30, 2014, the date that the Ukrainian government requested. On this day, Acting President Turchynov admitted that Ukraine had lost control over part of Donbas and the Armed Forces could not restore it.
As for the territories of the occupation, the intrigue remains. In 2014, the conflict line between Ukraine and the Russian Federation in Donbas was constantly moving. So it is difficult to predict how the Court will define them.
Why is it important?
This will unblock the cases of hundreds of complaints of ordinary Ukrainian citizens and companies against the Russian Federation in the same Court in Strasbourg. They were suspended during the hearing of the “big case.”
Even more important is that the ECtHR decision is also authoritative for all other international institutions. The fact that the Court will legally prove Russia’s control over Donbas, as well as the temporal and territorial limits of the occupation, will become an argument for other processes against the occupying state.
After Ukraine’s victory on the battlefield, the world will eventually come to Russia’s financial punishment for its crimes. It is important to remember at this point that the Kremlin’s misdeeds are not limited to a big war since the February 24, 2022, invasion. The owners of assets, businesses, and even simple apartments in Donetsk, Luhansk, and other cities, which Putin’s war has destroyed since 2014, should get compensation.
The first step towards this will be taken on January 25, 2023, in Strasbourg.