The European Court of Human Rights (ECtHR, Court)’s merits judgment in Ukraine and the Netherlands v. Russia (Ukraine-v.-Russia) prompted assessments (here; here; here; here). This post addresses one unexamined question: how the judgment has shaped, could have shaped, and may still shape Ukraine’s international compensation mechanism (Ukraine-mechanism)? Thus, this post first presents the Ukraine-mechanism and delimits compensable harm under the Ukraine-v.-Russia judgment. Then, it discusses three approaches to the interaction between the ECtHR and the Ukraine-mechanism, arguing for an intermediate approach. The MH17 flight shooting down, part of the judgment, is not considered as it is outside the Ukraine-mechanism’s mandate.
The Ukraine-mechanism: an overview
The Ukraine-mechanism comprises: the Register of Damage (Register) (receiving 40,000+ claims) to record and preserve evidence, a Claims Commission (under negotiation), and a Compensation Fund. The Register, under its Statute (Article 1.1), records damages caused from 24 February 2022.
Imagine three homes destroyed on the same street in eastern Ukraine: the first in 20216, the second in July 2022, and the third in October 2022. The Register does not cover the 2016 loss. Nor will the future Claims Commission most likely cover it. The home destroyed in October 2022 falls beyond the ECtHR’s ratione temporis jurisdiction as Russia ceased to be a party to the European Convention on Human Rights (ECHR) on 16 September 2022. Conversely, the July 2022 damage could be addressed by both the Court and the Register/Commission. Three identical harms, yet treated differently solely because of timing. Political compromise shaped this outcome, involving a scenario where all pre-February 2022 victims face justice delayed at the ECtHR and, in turn, no justice from the Ukraine-mechanism.
ECtHR’s judgment findings: compensable harm delimitation
To delimitate compensable harm under the ECtHR judgment, the ratione materiae scope should first be identified. Potential ECtHR-compensation is, under Articles 32 (‘Jurisdiction of the Court’), 33 (‘Inter-state cases), 34 (‘Individual applications’), and 41 (‘Just satisfaction’) of the ECHR, confined to harm stemming from violations of ECHR/ECHR-Protocols for which the state was found responsible. This excludes other international treaties binding on Russia (e.g., IHL treaties, Genocide Convention) or customary international law itself. The ECtHR recognised such jurisdictional constraints (Judgment, para 187). Russia breached (Judgment pp. 495-497), inter alia, Articles 2 (right to life), 3 (torture), 4(2) (forced labour), and 9 (freedom of religion) of the ECHR, plus Articles 1 (property protection) and 2 (right to education) of ECHR-Protocol 1. Compensable harm stems only from specific internationally wrongful acts for which Russia is responsible within those articles, i.e., (Judgment, pp. 495-497), mainly, extrajudicial killings, torture/mistreatment, forced labour, arbitrary/unlawful detention, unjustified civilian transfer/displacement, persecution of religious groups, property destruction/looting, and education indoctrination plus Ukrainian language suppression.
Concerning ratione temporis, potential ECtHR-compensation corresponds to harm stemming from violations (Judgment, paras 89, 365): i) between 11 May 2014 and, at least, 26 January 2022 (admissibility hearing date), when Russia exercised jurisdiction over Eastern Ukraine areas under separatist control; and ii) from 24 February 2022, when Russian armed forces launched their full-scale war, taking over Ukrainian territories, to 16 September 2022, end of Russia’s status as a Council of Europe member/ECHR party. The ECtHR-merits judgment soundly clarified that the Court has jurisdiction over events in the territory under separatist control in the Donetsk and Luhansk ‘from 26 January 2022 to 16 September 2022’ (Judgment, p. 493). Hence, there is an uninterrupted continuum of time: 11 May 2014-16 September 2022, which avoids affecting compensation beneficiaries: no time gap.
The ratione loci of potential ECtHR-compensation is limited to violations of ECHR/Protocols rights in Eastern Ukraine (first) and then, other Ukrainian areas, letting aside atrocities in Crimea, which have their own ECtHR-case/judgment (Ukraine v. Russia (re: Crimea)).
The ratione personae of potential ECtHR-compensation corresponds to individual victims (Ukrainians), not Ukraine (see Judgment, paras 1647-1648). This is consistent with the raison d’être of supranational human rights systems: compensation for victims even if treaty obligations are owed, partially/formally, to states, and compensation accrues from inter-state proceedings.
Given this, there would be three alternatives for the Court when referring to the Ukraine-mechanism: a fully deferential approach, a proactive alternative, and a ‘middle-ground’ approach. These are discussed below.
Full deference to the Ukraine-mechanism
The Court fully deferred to the Ukraine-mechanism by adjourning the ECtHR-just satisfaction stage (Judgment, p. 497), namely, the compensation stage. Unfortunately, this delays justice for pre-2022 victims who are unlikely to be covered by the Ukraine-mechanism. The Court briefly referred to the Register/future compensation mechanism (Judgment, para 1649) to decide that: i) given the nature of many violations found, the compensation stage ‘is not yet ready for decision’, and ii) any future award under the ECHR must regard the Register establishment and the discussions about a future compensation mechanism (Judgment, para 1650). In other inter-state ECtHR-cases of large-scale human rights violations, which also had related individual applications, the just satisfaction stage was put on hold for some time: subject to the outcome of external inter-state compensation settlement negotiations. Cyprus v. Turkey, and, mutatis mutandis, to an important extent, Georgia v. Russia (I), and Georgia v. Russia (II) illustrate this. However, besides delayed justice issues, the application of this fully deferential formula to the present case can be criticised as follows.
Opening just-satisfaction for pre-2022 violations
The said fully deferential formula extrapolation to Ukraine-v.-Russia is unsuitable since this case is different from the above-mentioned inter-state ECtHR-cases: i) there is a reference to a specific external mechanism, namely, the Register/Register-related future compensation commission; and ii) this mechanism, concretely, the Register, already has a well-delimited mandate scope concerning compensable harm. Moreover, mutatis mutandis, in cases of mass atrocities at other international courts such as the Inter-American Court of Human Rights (here; here) and the International Court of Justice (Armed Activities (Reparations)), existing/prospective national compensation/reparation mechanisms did not prevent these courts from ordering compensation/reparations.
In Ukraine-v.-Russia, the ECtHR’s generic reference to the Register/Register-based future compensation mechanism could have been accompanied by, first, a determination of the likely or foreseeable, extent of the overlap between an ECtHR compensation stage/award and the outer mechanism, based on the above-detailed ratione criteria and under the already established Register’s mandate scope.
Second, the ECtHR could have already started the ECtHR-just satisfaction stage concerning redressable harm that, prima facie, would fall short of the Register’s/future compensation mechanism’s mandate. The beginning of the satisfaction stage now, namely, a very active approach, would expeditiously serve the interest of justice and is diametrically different from the ECtHR’s approach adopted. This could have already started benefiting victims of pre-2022 violations, which are outside the Register’s mandate and, as of today, that of the prospective Claims Commission.
Yet, for a potential award for pre-2022 violations, enforcement realism remains: Russia is highly unlikely to pay. Even so, a quantified Strasbourg award for pre-2022 victims matters. It would establish a valuation benchmark for other fora and asset-based recoveries, would sustain political and supervisory pressure, and might serve as a basis for implementation within the Ukraine-mechanism or ECtHR judgment enforcement domestically. Crucially, such award damage quantification could be a template/guidance for the future Claims Commission.
Middle ground: strong signal re pre-2022 violation
Nevertheless, if the Court had ‘opened’ a pre-2022 tranche immediately, by fixing deadlines and inviting periodised claims, Ukraine-mechanism treaty negotiators could have pointed to Strasbourg and excluded pre-2022 harm from the Commission’s mandate: the Court would already be handling that slice. The Court also had fit and scale in view. Moving first risked parallel tracks, divergent standards, and double-recovery headaches. By holding back, the Court preserved leverage and space for a comprehensive solution.
Thus, an intermediate approach could be followed: the ECtHR’s could obiter dicta signal what the future Register-based Claims Commission’s scope mandate should look like, especially considering that there was no separate opinion unpacking compensation-related obiter dicta guidelines. The Court could have explicitly identified the risk that pre-24 February 2022 victims will be stranded if the Commission’s mandate begins only in 2022, and could have gently invited states to ensure a comprehensive, victim-centred approach. Such remarks would not prejudge ongoing negotiations to craft a treaty for establishing the said Commission. Instead, it would clearly flag the problem and, ideally, serve as an incentive to address pre-2022 violations within the Ukraine-mechanism. What the Court could have said, without overreaching, is: there is a temporal gap; any eventual Article 41 award will be sequenced by period to coordinate with the new mechanism and avoid double recovery; and, if no alternative redress emerges, pre-2022 claims may need to proceed sooner. The dispositif could have reserved Article 41 in whole, while the reasoning signalled likely time-based staging.
Once a treaty is signed and it becomes clear that the Claims Commission will not cover pre-2022 violations, Ukraine could take a proactive stance by informing the Court of its intention to apply to the Grand Chamber to resume consideration of Article 41 for pre-2022 violations: following an approach similar to that taken by Cyprus in 2007. Even if the Government does not act, the Court itself could still take notice of the treaty’s temporal scope and determine further procedure under Rule 75§1 of the ECtHR-Rules, namely, inviting updated, itemised claims under Rule 60 and the Just Satisfaction Claims Practice Direction, setting deadlines, and, if needed, calling for targeted evidence on causation and damage quantification. In this scenario, the Court could issue a partial Article 41 judgment for the pre-2022 tranche while reserving the 24 February-16 September 2022 period, expressly giving due regard to the Register and the future Claims Commission to avoid duplication and potential double recovery.
In conclusion, the Court can strategically keep subsidiarity intact for post-February 2022 harms while opening a lane for those outside the Ukraine-mechanism. This is arguably sound in law and more victim-centred. Whatever approach the Court follows, it should better justify it: a mere reference to the Register, without clearly delimiting overlapping compensable harm, is insufficient and leaves victims uncertain about their compensation prospects.
Disclaimer: Illia Chernohorenko is an employee of the European Bank for Reconstruction and Development. The opinions expressed are solely the responsibility of the author.
