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Who is in control? Russia exercised effective  control over eastern Ukraine since May 2014  (Ukraine and the Netherlands v Russia, ECHR) 

This analysis was first published on Lexis®PSL on 20 February 2023 and can be  found here (subscription required). 

Arbitration analysis: The Grand Chamber of the European Court of Human Rights (ECtHR)  ruled that the Russian Federation exercised jurisdiction over the territory of eastern  Ukraine held by separatists from 11 May 2014 and up to at least 26 January 2022. This  finding has been established beyond reasonable doubt based on the evidence furnished  by Ukraine, the Netherlands and third parties, as well as adverse inferences the court  drew. The ECtHR’s decision paves the way for other inter-State and individual complaints  against Russia associated with potential violations of the European Convention on  Human Rights (ECHR) in eastern Ukraine in the context of the ongoing international  armed conflict there. It also may serve as an authoritative source to support a tribunal  finding of jurisdiction in potential investor-state arbitrations against Russia provoked by  the war in Ukraine. Written by Tomas Vail, principal at Vail Dispute Resolution, Anastasiya  Ugale, independent international law & arbitration counsel. 

Ukraine and the Netherlands v Russia European Court of Human Rights, Applications nos  8019/16, 43800/14 and 28525/20 

What are the practical implications of this case? 

The Russian Federation ceased to be a party to the ECHR on 16 September 2022. The ECtHR  therefore has jurisdiction to hear cases against the Russian Federation for acts and omissions that  took place prior to that date. There are currently five inter-State cases against Russia and around  8,500 individual applications pending against Ukraine, Russia, or both before the ECtHR in relation to  the conflict in Ukraine. The findings of the ECtHR will open the door for the pending cases to move  forward and likely encourage further applications against Russia for violation of human rights during  the war. 

The ECtHR also spent considerable time defining Russia’s jurisdiction over the territories of eastern  Ukraine and recognised that Russia had extended its jurisdiction beyond its borders. The ECtHR  applied the effective control test that focused on Russia’s military presence and ‘extent to which its  military, economic and political support for the local subordinate administration [in eastern Ukraine]  provide[d] it with influence and control over [eastern Ukraine held by separatists]’. The ECtHR’s  decision may inspire qualified investors under Russia’s investment treaties to argue that the Russian  Federation has jurisdiction over eastern Ukraine based on the effective control test applied by the  ECtHR and claim damages for alleged violations in the context of the current war. The language of  the ECHR defining the scope of its application, however, differs from many international investment  treaties. The ECHR refers to ‘everyone under the jurisdiction’ of the respondent State (ECHR, Article  1), whereas the protections of many bilateral investment treaties (BITs) extend over the ‘territory’ of  the respondent State (see, eg, Ukraine-Russia BIT, Articles 2–3, 5). In its non-disputing party  submission in a case concerning Crimea, Ukraine argued that the term ‘territory’ may be read broadly  by application of the effective control test (see, eg, PJSC CB PrivatBank and Finance Company  Finilon LLC v The Russian Federation, PCA Case No 2015–21, Interim Award (Corrected), 27 March  2017, para 181). The term ‘territory’, according to the tribunal, included ‘territory over which a State  exercises settled jurisdiction or control and on behalf of which it has assumed responsibility for  international relations’ (ibid, para 186). Until September 2022, when the Russian President  announced incorporation into Russia of the self-proclaimed ‘Donetsk People’s Republic’ (‘DPR’) and  the ‘Luhansk People’s Republic’ (‘LPR’), as well parts of Ukraine’s Zaporizhzhia and Kherson regions,  the Russian Federation had not publicly assumed responsibility for international relations of these  areas. Whether arbitral tribunals will take into account the criteria for the effective control test used by  the ECtHR remains to be seen.

Further, the ECtHR’s finding of Russia’s extended jurisdiction based on effective control was  grounded in the detailed evidence supplied by the applicants and third parties, as well as adverse  inferences the ECtHR drew from the respondent State’s pleadings. The Russian Federation declined  to provide submissions or evidentiary material on key issues that were wholly or in large part within its  exclusive knowledge, citing national security and lack of relevance. The ECtHR emphasised a ‘distinct  lack of frankness and transparency’ in the respondent’s pleadings. Should the Russian Federation  decide to participate in the potential investor-state arbitration cases against it, it may consider  providing evidence concerning its influence on the separatists’ military strategy, provision of political  and economic support, weapons, other military equipment to the separatists and artillery coverage of  the separatists’ positions. Depending on the evidence to be supplied, arbitral tribunals may come to a  different conclusion as to the level of control that the Russian Federation exercised over the DPR and  LPR. 

Moreover, the ECtHR distinguished between the finding of Russia’s extended jurisdiction and the  issue of attribution that would be reviewed on the merits. It however emphasised that ‘the acts and  omissions of the separatists are [automatically] attributable to the Russian Federation in the same  way as the acts and omissions of any subordinate administration engage the responsibility of the  territorial State’. This automatic attribution seemingly creates a presumption, which the ECtHR invited  Russia to rebut by demonstrating on the merits ‘that the separatists did not, in fact, control particular  pockets of land or commit the particular acts which form the basis of the allegations by the applicant  states; or that the specific acts of particular separatists cannot be attributed to them’. Future arbitral  tribunals may grapple with a different set of evidence when deciding the issue of attribution. Further,  whether the rule of automatic attribution formulated by the ECtHR is applicable in the investor-state  context is also an issue for future tribunals to decide. 

What was the background? 

The case combines three applications brought against Russia by Ukraine and the Netherlands related  to the armed conflict in eastern Ukraine. Ukraine complained of the patterns of conduct  (administrative practices) by the separatists and Russian military that allegedly constitute violations of  human rights in eastern Ukraine. It also complained of the abduction of children in eastern Ukraine.  The Netherlands complained of the downing of the Malaysia Airlines flight MH17 on 17 July 2014,  which resulted in the deaths of 298 people, including 196 Dutch nationals. 

The case is unusual in that it concerns the alleged acts and omissions of the respondent state taking  place largely outside of its borders. Article 1 ECHR obligates the contracting states to secure relevant  rights ‘to everyone within their jurisdiction’. Such jurisdiction traditionally connotes territorial  application, with other bases of jurisdiction being exceptional. This exceptional jurisdiction outside of  the principle of territoriality may be established based on effective control exercised over the foreign  territory in question (ratione loci). The question of whether a contracting state is genuinely exercising  effective control is factual and must be established beyond reasonable doubt. . 

What did the court decide? 

In a November 2022 decision publicly delivered on 25 January 2023, the ECtHR found that the  separatists-held areas in eastern Ukraine were, from 11 May 2014 and up to at least 26 January  2022, under the jurisdiction of the Russian Federation. It established beyond any reasonable doubt  that Russian military personnel was present in an active capacity in Donbass at least from April 2014  and there was a large-scale deployment of Russian troops from August 2014 at the latest. That alone,  however, was insufficient to establish jurisdiction under the effective control test. The ECtHR analysed  the vast body of evidence and found that ‘as a result of Russia’s military presence in eastern Ukraine  and the decisive degree of influence and control it enjoyed over the areas under separatist control in  eastern Ukraine as a result of its military, political and economic support to the separatist entities,  these areas were, from 11 May 2014 and subsequently, under the effective control of the Russian  Federation’.  

The ECtHR grounded its conclusions in the evidence provided by the applicants and third parties, as  well as adverse inferences it drew from Russia’s pleadings.

The ECtHR also recognised that the ‘State w[ould] ultimately only be held responsible for breaches of  the Convention if the impugned acts or omissions [were] attributable to it’. It, however, concluded that  ‘in cases where a State’s ratione loci jurisdiction [was] established outside its sovereign borders, the  acts and omissions of the local administrations in the areas concerned w[ould]…be automatically  attributable to the State’.  

The ECtHR also found admissible, based on sufficiently substantiated prima facie evidence, the  complaint regarding administrative practices in eastern Ukraine held by separatists consisting of  destruction, theft and looting of private and commercial property, and unlawful appropriation of private  property without compensation. The majority of other complaints of administrative practices were also  found admissible, consisting of the complaints of unlawful military attacks against civilians and civilian  objects, including the shooting down of Malaysian Airlines flight MH17 on 17 July 2014, the shooting  of civilians and the summary execution and torture or beating to death of civilians and Ukrainian  soldiers who were prisoners of war or otherwise hors de combat; forced labour; abductions, unlawful arrests and lengthy unlawful detentions; deliberate attacks on, and intimidation of, various religious  congregations not conforming to the Russian Orthodox tradition; the targeting of independent  journalists and the blocking of Ukrainian broadcasters; prohibition of education in the Ukrainian  language; targeting of civilians of Ukrainian ethnicity or citizens who supported Ukrainian territorial  integrity; and abduction of children. 

Case details 

• Court: European Court of Human Rights 

• Judge: Siofra O’Leary, President 

• Date of judgment: 30 November 2022, delivered 25 January 2023 

Tomas Vail is a principal at Vail Dispute Resolution, and Anastasiya Ugale is an independent  international law & arbitration counsel If you have any questions about membership of our Case  Analysis Expert Panels, please contact caseanalysiscommissioning@lexisnexis.co.uk. 

Authors: Tomas Vail & Anastasiya Ugale

Originally Published: https://www.lexisnexis.com/uk/lexispsl/arbitration/document/412012/67KP-1293-SJCV-R28B-00000-00?utm_source=psl_da_mkt&utm_medium=referral&utm_campaign=who-is-in-control?-russia-exercised-effective-control-over-eastern-ukraine-since-may-2014-(ukraine-and-the-netherlands-v-russia,-echr)

Publish Date: February 20, 2023