Date of publication: 9 September 2016
Roman Marchenko, Attorney at Law, Senior Partner
In early August, the European Court of Human Rights (ECtHR) began consideration of the complaint filed against Ukraine in the case on crash of Malaysia Airlines Flight MH17 over the Donbas on July 17, 2014. The relatives of the dead passengers of Boeing accuse Ukraine that the official Kyiv did not ensure safety of the passengers of MH17. In particular, that the airspace over the ATO zone was not closed. As a result, they intend to collect from the state EUR 1 mln of compensation.
However, the majority of international experts, who discussed the procedures for prosecution of the persons involved in the tragedy of Flight MH17 at the annual IATA Legal Simposium in February this year in Barcelona, believe that the jurisdiction of the ECtHR should not be considered as the best mechanism for investigation and subsequent punishment of those responsible for the tragedy of MH17. The reason is that the European Court may make the decision on payment of compensation to the relatives of the dead passengers of the aircraft of Malaysia Airlines, but will not be able to prosecute the immediate perpetrators, and the politicians who gave the orders.
Many years of experience and practice of Ilyashev & Partners of lodging complaints to the ECtHR suggests that the relatives of the passengers of MH17 chose one of the most effective mechanisms for obtaining compensation. The logic of the plaintiffs is, in principle, clear. After all, according to the Convention on International Civil Aviation, each state is responsible for providing a safe and secure environment for the flights of civil aircraft over its territory. Ukraine was obliged to take all measures to secure the lives and safety of the passengers of MH17. Therefore, the chances of getting compensation are high. Another question is what country will pay them.
After all, although the air crash actually occurred in the Ukrainian sky, at the time of the tragedy Ukraine did not control a part of its territory, over which Boeing crashed. Further, as known from the Dutch Safety Board Report, the accident was caused by the striking element of the BUK system, which was located in the territory controlled by the pro-Russian separatists. It means that the Ukrainian armed forces did not produce a shot that has caused the plane crash. Although the missile that shot down the aircraft of Malaysia Airlines was released from the territory of Ukraine, it does not mean that the ECtHR will tacitly make a negative decision for Ukraine. Moreover, our state has the weighty arguments allowing to prove its innocence and, as a result, win the lawsuit in the ECtHR.
It should be recalled that Ukraine, for the period of the antiterrorist operation in the Donbas, partially suspended the civil aviation flights over the zone of combat operations at the altitude of 6,000 meters. The reason is that the representatives of the so-called DNR and LNR had the weapons at their disposal that could shoot down the flying machines at low and medium altitudes. The Ukrainian Armed Forces did not used in the ATO zone the weapons capable of hitting air targets at the altitudes of over 6,000 meters, and the representatives of the so-called DNR and LNR, in theory, did not have such kind of weapons.
In addition, the Russian Federation denied delivery of precision weapons to the separatists. Accordingly, Ukraine had no need to close air levels at the altitude of over 6,000 meters in the ATO zone. Flight MH17 was shot down at the altitude of over 10,000 meters. The missile was launched from the air defense system BUK-1M, which is certainly impossible to buy in a “village commissary”. A similar kind of ammunition is in service in the field army of the Russian Federation…
The experience of handling such cases enables us to assume that, when considering the claim, the ECtHR may take a more flexible approach regarding definition of the jurisdiction of the state over its territory, using the concept of “effective control of the territory”. A similar concept was used in the case of Ilaşcu and others v. Moldova and Russia. Then, the ECtHR concluded that the state may be held liable for observation of human rights in some areas beyond the national territory that came under the control as a result of military actions.
The judges of the ECtHR are likely not to initiate their own additional investigation regarding the causes of the tragedy of MH17 and will study only the evidence provided by the plaintiffs, the results of research of the non-governmental organizations and the conclusions of the official international and national agencies that investigated the causes of the tragedy. It is important to note that the Political Committee of the Parliamentary Assembly of the Council of Europe supported the draft resolution on the Political consequences of the conflict in Ukraine. The document recalls violation of the territorial integrity and sovereignty of Ukraine, annexation of the Crimea by Russia and its support of separatists in the east of our country.
The ECtHR can not ignore the resolution of the PACE Committee on Political Affairs. Therefore, Ukraine has good chances to hold Russia and supported by it representatives of the so-called DNR and LNR liable for the tragedy of flight MH17.
However, it should be noted that consideration of the claim against Ukraine may extend for 3-6 years, and the Russian Federation may subsequently not recognize and, thus, not comply with the ECHR judgment. However, Ukraine should make the most of the proceedings in the ECtHR regarding MH17 to establish the actual perpetrator of the tragedy.