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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Will the ECtHR Accept a Lawsuit Against the Russian Federation from Relatives of Victims of MH17

10.06.2016

Oleksadr Dementiev, lawyer at Law at Ilyashev & Partners

Source: European Pravda

In May the European Court of Human Rights (ECtHR) received a lawsuit against Russia from the relatives of victims of MH17 airliner that crashed in Donbas on July 17, 2014.

As noted in various sources, the applicants accuse the Russian Federation of violating Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Right to Life”) and Article 3 (“Prevention of inhuman and degrading treatment”) and Article 13 (“Right to effective remedy”) of the Convention.

In addition, earlier it was also reported that the applicants to the European Court – the relatives of several Australian and New Zealand passengers of Malaysian airliner MH17 – claim compensation in the amount of $10 mln per passenger from Russia.

According to information published in the press, the relevant lawsuit against Ukraine has not been filed.

The lawsuit was filed on May 9, 2016, and the European Court confirmed its receipt. It should be noted: it does not mean that the ECtHR will consider the case.

At this stage, the Court adopts the decision on observation by the applicants of all the formal requirements for the preparation of complaints. Among them – compliance with the rules on admissibility of the complaint, the first of which is exhaustion of effective remedies.

It means that the people, who believe that they suffered as a result of crash of aircraft MH17, had to file the relevant complaints to the competent national authorities. As part of the remedy they had to go through all the possible instances in a hierarchical order.

The second condition for the admissibility of the complaint is set forth in Article 35 of the Convention – the so-called “rule of six months”, when the applicants must submit their claim within six months after the last decision of the competent national authority (recognized as effective by the European Court), which considers the issue being the subject matter of the complaint or the date of the event if the applicants did not apply with the relevant complaints to the competent national authorities.

In addition, when preparing their complaints, the applicants were obliged to fulfill all the formal requirements set forth in Rule 47 of the Rules of the European Court (“Content of individual complaint”).

If the European Court finds that all formal requirements were observed by the applicants, the case will be assigned a number, the dossier will be opened in the Court, the applicants will receive a notification of acceptance of complaints for consideration.

It usually takes about two months for the European Court to approve the decision on the admissibility of complaints. Subsequently, on the basis of complaints filed by the applicants together with all documents the European Court will formulate the background and the facts of the case and, most importantly, the questions to the Russian government.

Thirdly, the so-called claims of the applicants and as stated in the Convention – the amount of necessary “just satisfaction”.

As mentioned above, each of the applicants requires monetary compensation of $10 mln for violated rights.

Here a few points should be noted: the European Court awards similar (and larger) amounts as pecuniary and non-pecuniary compensation. For example, in cases of Agrokomplex v. Ukraine – EUR 27 mln, Yukos v. the Russian Federation – EUR 1.86 bln.

However, the question is whether it is expedient to direct such claims against the Russian Federation, considering that even in case of a positive decision of the ECtHR for the applicants, it might not be executed by the Russian party. The fact is that at the end of last year the Russian State Duma adopted the law giving the Constitutional Court the right to recognize it impossible to execute foreign judgments in Russia.

According to the law, the Constitutional Court may permit the Russian authorities to refuse execution of resolutions of not only the European Court of Human Rights, but also of any intergovernmental body on protection of human rights and freedoms.

 

 
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