Russia Lost Donbas Case at First International Court. What Does It Mean

Thursday, 26 January 2023 — , European Pravda, from Strasbourg

On January 25, the European Court of Human Rights published an interim verdict on the so-called "big Donbas case".

This decision has become an astonishing victory for Ukraine.

The Court confirmed that Russia has been carrying out a military invasion of Donetsk and Luhansk oblasts since April 2014. From May 2014, Russian control over the occupied territories had become absolute. In the summer, the Russian Federation sent troops to Donbas full-scale. It is now legal and official that the war between the Russian Federation and Ukraine has been going on for almost nine years.

In addition, the Court has ruled that Russia bears full responsibility for what happened under its occupation.

The decision of the Court will have a real financial matter for many Ukrainian businesses and ordinary citizens who suffered from the Russian aggression in Donbas.

What is this case about?

To make it short, the ECtHR considers the collective complaint of Ukraine and the Netherlands against Russia concerns violations of human rights by the Russian Federation in the temporarily occupied territories of Donetsk and Luhansk regions, including the shot down of the MH 17,
where the Russian occupation administrations of the so-called 'Donetsk People's Republic' and 'Luhansk People's Republic,' as well as units of the Armed Forces of the Russian Federation operate.

The Ukrainian government has brought the vast majority of charges. The Netherlands joined the case because of the downing of the MH17 flying from Amsterdam by the Russian "Buk."

Official Kyiv handed over an impressive array of evidence to Strasbourg - interrogation protocols, video recordings, intelligence, etc. The textual description of the evidence base alone attached to the court decision is more than 800 pages!

The European Court of Human Rights has yet to close the case. It will take several more years to make a final decision, which must confirm or reject each complaint. However, in this case, the current, intermediate stage was crucial. The Court had to determine whether Russia should bear responsibility for the violations, even though they were committed on Ukrainian territory. It may be possible if it is proved that this territory of Ukraine was under Russian occupation.

The Court in Strasbourg has made this decision.

The ECtHR has become the first international Court to legally prove Russian occupation of part of Donbas since 2014. So far, only some political bodies have made related statements.

The details of the ECtHR's decision make Ukraine's victory even more significant for the government in Kyiv.

What has the Court ruled?

The ECtHR decision on the "big Donbas case" is a 230 page long document. Six main elements are the following:

- recognition of armed aggression;

- setting the date of the beginning of the Russian occupation;

- recognition of Russian control over the occupied territory;

- definition of territories for which the Russian Federation is responsible for violations;

- permission to prove the guilt of the Russian Federation for the consequences of shelling of civilian objects on the Ukrainian side of the contact line;

– confirmation that Russia's violations (from murders and torture to restrictions on education) were systemic and not isolated.

First, the ECtHR has legally confirmed that in the spring of 2014, Russia carried out armed aggression against Ukraine in the Donetsk and Luhansk regions. By late the summer, a large-scale invasion began, which Russia still denies.

"The Grand Chamber finds it established beyond any reasonable doubt that there were Russian military personnel in an active capacity in Donbas since April 2014. Russian soldiers fought in the armed groups and senior members of the Russian military were present in command positions in the separatist armed groups and entities from the outset. From at the latest August 2014 in the context of the battle of Ilovaisk, there was a large-scale deployment of Russian troops," the ECtHR decided.

The Court also finds that from May 11 2014, all areas in the hands of separatists from that date had been areas under "DPR" and "LPR" control (hereinafter - "DPR" and "LPR"). By the way, the decision contains these abbreviations with quotation marks - the Court emphasises that it does not consider these structures real.

From May 11 onwards, the non-government-controlled territory in the East of Ukraine is considered to be under the effective control (occupation) of the Russian Federation.

May 11, as a starting point, does not deny that the armed aggression and occupation in Donbas had begun even earlier. This date refers to the legal responsibility of the Russian Federation for the occupied territory.

Also, the establishment of the so-called "administrative practice" was also crucial. It means the ECtHR considers proven systematic Russian violations during:

– murders and beatings to death of civilians and Ukrainian prisoners of war;

– torture, including sexual violence, rape, inhuman and degrading conditions of detention;

– organisations of forced labour;

- kidnapping, illegal arrests and long-term illegal detention;

- attacks on religious grounds;

- persecution of journalists and blocking of Ukrainian broadcasters;

- destruction and unlawful appropriation of private property;

- bans on education in the Ukrainian language;

- persecution of persons of Ukrainian nationality or citizens who supported the territorial integrity of Ukraine.

The Ukrainian complaint will be considered on the merits of all these episodes. However, there is one more interesting detail in this decision.

Borders of the Russian occupation

When the ECtHR started discussing the case, Ukrainian government lawyers admitted in conversations with EuroPravda that it was a serious flaw on their side. Kyiv did not provide the Court with a single definition of occupied territories. In 2014, the front line would change weekly, if not daily.

In a similar case "Georgia v. Russia" on the war in 2008, the Court refused to recognise its jurisdiction in times of hostilities, explaining that the "fog of war" prevents recognition of which state exercises control. However, hostilities lasted only five days during the Russian-Georgian war. In Ukraine in 2014-2015, both sides fought for months!

Kyiv predicted various outcomes. But the Court's ruling exceeded even the most optimistic expectations.

It decided that the Russian Federation controlled all the territory of the so-called "DPR" and "LPR" since May 11, 2014. "The finding that the Russian Federation had effective control over the relevant parts of Donbas controlled by the subordinate separatist administrations or separatist armed groups means that the acts and omissions of the separatists are 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," the Court explains.

The Court, however, kept its right to cross out the complaint those episodes related to military operations, but only on the condition that they took place "in conditions of chaos." When it was really unclear who controlled what.

This approach allows the ECtHR to decide that the discussions of the complaint on MH17 will continue. Even though this tragedy was part of hostilities. The Court explains that this crime was not committed "in conditions of chaos." The location of the rocket launch was not attacked at that moment. This approach makes all episodes of the Ukrainian complaint acceptable to the Court.

Separately, the ECtHR allows considering the episodes when the Russian Federation carried out artillery shelling of territories controlled by Ukraine, destroying civilian houses and schools. The Court will decide on the admissibility of each individual episode will during hearing the merits of the complaint.

This decision is an outspoken victory for Ukrainian lawyers.

Russia excluded from the Council of Europe. What does it change?

Even though Russia was expelled from the Council of Europe following the full-scale invasion, it remains responsible for human rights violations committed in the past.

Russia now refuses to comply with all past ECtHR decisions. But there is no need to implement this decision in Moscow. It gives the decision even more value since the ECtHR set dates and territories of the Russian occupation and recognised that Russia is legally responsible for the events in Donbas.

"This decision opens the way for investment arbitrations," explained Iryna Mudra, Deputy Minister of Justice. And this is important for business.

Although it is now difficult to collect all fines by international courts from Russia, sooner or later this day will come.

Sergiy Sydorenko,
Editor, "European Pravda",
From Strasbourg

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