The European Court of Human Rights as a mechanism of investigation and bringing the Russian Federation to responsibility
The European Court of Human Rights (ECtHR, the Court) is a judicial body whose jurisdiction extends to the member states of the Council of Europe that have ratified the Convention for the Protection of Human Rights and Fundamental Freedoms, and to all issues of interpretation and application of this Convention and its Protocols.
The ECtHR operates permanently. The Court consists of 46 judges who are elected by the Parliamentary Assembly of the Council of Europe (PACE) from each member state and participate in the work of the ECtHR personally.
In June 2022, Mykola Hnatovskyi was elected a judge of the ECtHR from Ukraine for a term of 9 years.
The ECtHR examines complaints exclusively regarding the rights and freedoms guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or its protocols.
The complaint must:
- be submitted after applying all domestic means of judicial protection of one’s right: the applicant’s passing the court of first instance, the court of appeal, and court of cassation instances;
- be submitted no later than 4 months after the final consideration of the issue by the competent state body;
- appeal violations that occurred after the date of ratification of the Convention by the state;
- refer to events for which the state authority is responsible;
- be submitted only against the state that ratified the Convention.
The Convention was ratified by Ukraine and the Russian Federation, and therefore, citizens of any country that ratified the Convention, including Ukraine, had the right to file complaints to the ECtHR regarding actions/inactions related to violations of the provisions of the Convention.
Due to the full-scale invasion of the Russian army into the territory of Ukraine, on March 16, 2022, the Committee of Ministers of the Council of Europe adopted Resolution CM/Res(2022)2 on the cessation of the membership of the Russian Federation to the Council of Europe. According to the Resolution on the consequences of the cessation of Russia’s membership to the Council of Europe and in accordance with Article 58 of the Convention, the Russian Federation has ceased to be a High Contracting Party to the Convention since September 16, 2022. Therefore, after the expulsion of the Russian Federation from the Council of Europe, the Court retains the competence to consider complaints against this country regarding its actions or inaction, which may constitute a violation of the Convention, provided they occurred before September 16, 2022. And it was possible to submit applications to the Court for another four months, until January 16, 2023.
Complaints could have been filed through Ukrposhta, as well as the digital system introduced to simplify this process at espl.com.ua.
According to the Commissioner for Human Rights of the European Court of Human Rights Margarita Sokorenko, almost 17,500 complaints submitted by Ukrainians against the Russian Federation are pending before the Court. Their consideration is ongoing, the term of consideration of the application is over one year, and the probability of receiving compensation is high.
In the context of the armed aggression of the Russian Federation against Ukraine, the most appeals to the Court are:
- violation of the right to life;
- torture, inhuman and degrading treatment;
- violation of the right to freedom and personal integrity;
- violation of the right to own property, etc.
In order to protect its citizens, Ukraine uses the mechanism of submitting interstate complaints against Russia to the ECtHR.
Thus, due to the aggression of the Russian Federation against Ukraine, which has resulted in massive violations of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, the temporarily occupied territory of the Donetsk and Luhansk regions, as well as other territories of Ukraine, where the Russian Federation is currently carrying out military aggression, The Government of Ukraine filed four lawsuits against the Government of the Russian Federation before the ECtHR.
“Ukraine against Russia (regarding Crimea)” according to petitions No. 20958/14 and 38334/18;
“Ukraine and the Netherlands against Russia” according to petitions No. 8019/16, 43800/14, 28525/20, and 11055/22, which concerns the events in the temporarily occupied territories of Donetsk and Luhansk regions and human rights violations during the full-scale invasion of Russia;
“Ukraine v. Russia (VIII)” according to petition No. 55855/18 regarding captured sailors;
“Ukraine v. Russia (IX)” according to petition No. 10691/21 regarding the murders of opponents of the Russian Federation.
It should be noted that Russia’s attempt to use this mechanism against Ukraine was unsuccessful. Thus, on July 18, 2023, the Court pronounced a judgment in the case “Russia v. Ukraine” (No. 36958/21), in which it refused to fully satisfy the petition of the Russian Federation to hold Ukraine responsible for the disaster of the airliner MH17 because Ukraine allegedly “had not closed its airspace”.
A hearing is scheduled for November 8, 2023, in the case of Ukraine against Russia regarding the violation of human rights in the occupied Crimea. The case under petitions No. 20958/14 and No. 38334/18 concerns Ukraine’s claim that since February 2014, the Russian-controlled authorities of the peninsula have systematically violated human rights in Crimea. The court will hold a hearing on the admissibility and merits of the case.
Due to the full-scale invasion of the Russian Federation into Ukraine, Russian armed forces are carrying out attacks on the civilian population. In order to protect citizens, the Government of Ukraine submitted a petition in accordance with the ECtHR Rule 39 based on the results of which, on March 1, 2022, the ECtHR issued temporary instructions to the Russian Federation to refrain from military attacks on the civilian population and civilian buildings, including residential premises, ambulances and other civil infrastructure facilities, as well as to guarantee the safety of medical facilities and medical personnel in the territory that is under attack or that is occupied by the Russian military.
Later, the ECtHR expanded these temporary instructions and obliged the Government of the Russian Federation to provide the civilian population with access to safe evacuation routes, medical aid, food, and other basic necessities. On April 1, 2022, the ECtHR noted that such evacuation routes should also allow the civilian population to leave for safer areas of the territory of Ukraine.
On June 23, 2022, the Government of Ukraine submitted to the ECtHR an intergovernmental petition against Russia regarding a significant violation of the Convention by the aggressor country.
In order to ensure the right to life and the prohibition of torture, guaranteed by Articles 2 and 3 of the Convention, on August 22, 2022, in accordance with the ECtHR Rule 39, the Government of Ukraine submitted some new urgent demands regarding the Ukrainian defenders of Azovstal, who were captured by the Russian occupiers.
Ukraine also demanded immediate measures to prevent the participation of Ukrainian defenders in any kind of so-called “tribunals” and other show trials.
The next day, after considering the petition issued by the Government of Ukraine, the ECtHR noted that in the case “Oliynychenko v. Russia and Ukraine” the Court provided the Russian Federation with urgent instructions to immediately ensure the rights enshrined in the Convention, including the right to medical assistance, which covers any requests on behalf of Ukrainian prisoners of war, in which sufficient evidence has been provided of a serious and imminent risk of irreparable harm to their physical integrity (Article 3 of the Convention) and/or right to life (Article 2 of the Convention). The ECtHR emphasized that the instructions provided to the Russian Federation regarding Ukrainian prisoners of war continue to operate and indicated that they are also applicable in the international case “Ukraine v. Russia” on petition No. 11055/22 regarding the violation of human rights during the full-scale invasion of Russia. In addition, the ECtHR urgently informed the Committee of Ministers of the Council of Europe about this decision.
Despite these decisions, prisoners who return from captivity as a result of exchanges talk about torture and gross violations of their rights. And since June 15, 2023, court sessions have been held in Rostov-on-Don over the captured defenders of Azovstal. 22 Ukrainian prisoners, including 8 women who worked as cooks in the Azov battalion are among prisoners on trial. The aggressor country cynically accuses Ukrainian defenders of the so-called “participation in a terrorist organization” and “participation in overthrowing the government in the DNR (Donetsk People’s Republic)” – this is the assessment of the violation of the rights of captured military servicemen made by Ombudsman of Ukraine.
The process of Ukraine’s fight against the Russian Federation on the field of the European Court is continuing. The government of Ukraine is submitting addendums to the interstate petition “Ukraine v. Russia (X)” on Russia’s violation of human rights during the full-scale invasion; the process of recording evidence of human rights violations, which were revealed in the process of liberating the occupied territories, is continuing as well. Moreover, more than 30 countries are ready to act as a third party or have joined this case.
The importance of positive for Ukraine decisions made by the ECtHR will strengthen the possibilities of defending justice when using other international mechanisms of investigation and bringing criminals to justice, including receiving compensation.
An illustrative example of this is the ECtHR’s verdict made in April 2023 that obliged Russia to pay about 130 million euros of compensation to Georgia for the war in 2008. In particular, according to the verdict made by the ECtHR, within three months, Russia must have paid Georgia 3.25 million euros of compensation for the killing of 50 civilians in the Georgian villages of South Ossetia and the buffer zone. Another 2.69 million euros of compensation was to be paid for 166 cases of arbitrary detention and inhumane treatment of the Georgian civilian population by militants of the so-called “South Ossetian Ministry of Internal Affairs”.
Also, 640 thousand euros of compensation was assigned for the torture of Georgian prisoners of war by South Ossetian militants. Another 8.24 million euros should be paid to 142 Georgians who suffered from the occupiers’ reluctance to conduct a solid investigation into the deaths of civilians during the active phase of hostilities, etc.
Since the huge number of human rights violations, which are the result of Russia’s armed aggression on the territory of Ukraine, were committed after September 16, 2022, they can no longer be considered by the ECtHR. Therefore, it is important to use alternative international legal means of protection, in particular conventional UN bodies such as the UN Human Rights Committee.
For reference
This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union (helsinki.org.ua).
Opinions, conclusions, and recommendations presented in this publication do not necessarily reflect the views of USAID, the United States Government, or UHHRU. The contents are the responsibility of the authors and ECHR.
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