GRAND CHAMBER

CASE OF UKRAINE AND THE NETHERLANDS v. RUSSIA

(Applications nos. 8019/16, 43800/14 and 28525/20)

DECISION

STRASBOURG

30 November 2022

Table of Contents

LIST OF ABBREVIATIONS

PROCEDURE

THE FACTS

I. OVERVIEW

A. The chronology of the conflict

B. The incidents forming the basis of the complaints regarding the alleged abduction and transfer to Russia of three groups of children and accompanying adults (no. 43800/14)

C. Relevant individuals

D. Separatist armed groups in the initial stages of the conflict

1. Donetsk region

2. Luhansk region

E. Political structures in the “DPR” and “LPR”

1. “DPR”

(a) Before the May 2014 “referendum”

(b) The May 2014 “government”

(c) Subsequent changes to the “government”

(d) After the first “elections” in November 2014

2. “LPR”

(a) Before the May 2014 “referendum”

(b) The May 2014 “government”

(c) Subsequent changes to the “government”

(d) After the first “elections” in November 2014

II. FACTS ACCORDING TO THE PARTIES

A. According to Ukraine

1. In respect of the general situation in eastern Ukraine (no. 8019/16)

(a) Political background

(b) The start of the unrest

(c) The build-up of Russian troops along the border

(d) From civil unrest to paramilitary action

2. In respect of the alleged abduction and transfer to Russia of three groups of children and accompanying adults (no. 43800/14)

(a) First group of children

(b) Second group of children

(c) Third group of children

B. According to the Netherlands

1. The conflict in the east of Ukraine

2. Events preceding the downing of flight MH17

(a) Expansion of the conflict to airspace

(b) The request for and delivery of the Buk-TELAR with crew

(c) The transport to and arrival at the launch location and launch of a missile

(d) Return to the Russian Federation

3. Flight MH17

(a) Situation in the airspace above the east of Ukraine

(b) The downing of flight MH17

(c) Initial responses to the downing of flight MH17

4. Confirming the use of the Buk-TELAR against flight MH17

(a) Cause of the crash

(b) The Buk surface-to-air missile system

5. Aftermath

(a) Immediate international responses and repatriation and identification of the victims

(b) Technical investigation

(c) Criminal investigation and prosecution

(i) The Joint Investigation Team

(ii) The prosecution of individuals

C. According to Russia

COMPLAINTS

I. APPLICATION NO. 8019/16

II. APPLICATION NO. 43800/14

III. APPLICATION NO. 28525/20

THE LAW

I. PRELIMINARY OBSERVATIONS

II. SCOPE OF THE CASE

A. Temporal scope of the allegation of administrative practices

B. Scope of responsibility

III. APPROACH TO THE EVIDENCE

A. The evidence in the case

1. Evidence relied on by the Governments

2. Request for further factual submissions and supporting evidence

3. Material in the public domain

B. The parties’ submissions

1. The respondent Government

2. The applicant Ukrainian Government

3. The applicant Dutch Government

C. The Court’s approach

1. General principles

(a) The burden of proof and drawing of inferences

(b) Assessment of the evidence

(c) The standard of proof at the admissibility stage

(i) Standard of proof in relation to the alleged violations

(ii) Standard of proof in relation to jurisdiction

2. Approaching the evidence in this case

(a) Burden and standard of proof and the drawing of inferences

(b) How the principal evidence in the case-file should be viewed

(i) Reports of the OSCE and the OHCHR

(ii) Material from the OM and the JIT

(iii) The DSB report

(iv) Reports by NGOs and research collectives

(v) Government reports and intelligence

(vi) Witness statements

(vii) Interviews and press conferences

(viii) Media reports

IV. ALLEGED LACK OF A “GENUINE APPLICATION”

A. The parties’ submissions

1. The respondent Government

2. The applicant Ukrainian Government

3. The applicant Dutch Government

B. The Court’s assessment

1. Alleged political propaganda

2. Alleged submission of false evidence

3. Alleged contempt for the Convention obligations invoked

4. Alleged involvement in the Myrotvorets website

5. Alleged hacking attacks

6. Conclusion

V. JURISDICTION

A. General

B. Article 1 jurisdiction

1. The parties’ submissions

(a) The respondent Government

(b) The applicant Ukrainian Government

(c) The applicant Dutch Government

2. Third-party submissions

3. The Court’s assessment

(a) Introductory remarks

(b) The general principles regarding jurisdiction

(i) Territoriality

(ii) Exception to territoriality: within a State’s own territory

(iii) Exception to territoriality: outside a State’s sovereign borders

(α) The relevance of international armed conflict

(β) The criteria for establishing jurisdiction

‒ Effective control over an area

‒ State agent authority and control

‒ “Jurisdictional link” as regards the procedural obligation under Article 2

(c) Application of the general principles to the facts of the case

(i) Whether there was effective control over an area

(α) Military presence

‒ The parties’ memorials

‒ The findings of the Court

(β) Military support to the separatists

‒ Influence on military strategy

▪ The parties’ memorials

â–ª The findings of the Court

‒ Supply of weapons and other equipment

▪ The parties’ memorials

â–ª The findings of the Court

‒ Training

▪ The parties’ memorials

â–ª The findings of the Court

‒ Artillery cover

▪ The parties’ memorials

â–ª The findings of the Court

‒ Build-up of troops at the border

▪ The parties’ memorials

â–ª The findings of the Court

(γ) Political support to the separatists

‒ The parties’ memorials

‒ The findings of the Court

(δ) Economic support to the separatists

‒ The parties’ memorials

‒ The findings of the Court

(ε) Conclusion

(ii) Whether some particular complaints may be excluded from the respondent State’s spatial jurisdiction

C. Jurisdiction ratione materiae

1. Complaints concerning the armed conflict

(a) The parties’ submissions

(i) The respondent Government

(ii) The applicant Ukrainian Government

(iii) The applicant Dutch Government

(b) The Court’s assessment

2. Complaint under Article 3 of Protocol No. 1

(a) The parties’ submissions

(b) The Court’s assessment

VI. COMPLIANCE WITH ARTICLE 35 § 1 OF THE CONVENTION

A. The parties’ submissions

1. The respondent Government

2. The applicant Ukrainian Government

3. The applicant Dutch Government

B. The Court’s assessment

1. General principles under Article 35 § 1

(a) Exhaustion of domestic remedies

(b) The six-month time-limit

2. Application of the general principles to the facts of the case

(a) Alleged administrative practices

(b) Complaints alleged to be akin to an administrative practice

(c) Individual violations

(i) Complaints concerning the alleged abduction of children

(ii) Complaints concerning the downing of flight MH17

(α) Objection as to exhaustion

(β) Objection as to six months

(γ) Conclusion

VII. PRIMA FACIE EVIDENCE OF ALLEGED VIOLATIONS

A. The alleged administrative practice in the application concerning the general situation in eastern Ukraine (no. 8019/16)

1. The parties’ submissions

(a) The respondent Government

(b) The applicant Ukrainian Government

2. The Court’s assessment

(a) The applicable tests

(i) Repetition of acts

(ii) Official tolerance

(b) Repetition of acts within the scope of the Convention

(i) Article 2

(ii) Article 3

(iii) Article 4

(iv) Article 5

(v) Article 9

(vi) Article 10

(vii) Article 11

(viii) Article 1 of Protocol No. 1

(ix) Article 2 of Protocol No. 1

(x) Article 14

(c) “Official tolerance”

(d) Conclusion

B. The alleged administrative practice in respect of the abduction and transfer to Russia of three groups of children (no. 43800/14)

1. The parties’ submissions

(a) The respondent Government

(b) The applicant Ukrainian Government

2. The Court’s assessment

C. The alleged violations related to the downing of flight MH17 (no. 28525/20)

1. The alleged violation of the substantive limb of Article 2

(a) The parties’ memorials

(i) The respondent Government

(ii) The applicant Dutch Government

(b) The Court’s assessment

2. The alleged violation of the procedural limb of Article 2

(a) The parties’ memorials

(i) The respondent Government

(ii) The applicant Dutch Government

(b) Third-party submissions

(c) The Court’s assessment

3. The alleged violation of Article 3

(a) The parties’ memorials

(i) The respondent Government

(ii) The applicant Dutch Government

(b) Third-party submissions

(i) The Government of Canada

(ii) The MH17 applicants

(c) The Court’s assessment

4. The alleged violation of Article 13

(a) The parties’ memorials

(i) The respondent Government

(ii) The applicant Dutch Government

(b) The Court’s assessment

FOR THESE REASONS, THE COURT,

LIST OF ABBREVIATIONS

ARSIWA ILC Articles on Responsibility of States for Internationally Wrongful Acts

ATO Anti-Terrorist Operation

“DPR” “Donetsk People’s Republic”

DSB Dutch Safety Board

FSB Federal Security Service of the Russian Federation

GRU Russian military intelligence

HRMMU OHCHR Human Rights Monitoring Mission in Ukraine

ICJ International Court of Justice

ICRC International Committee of the Red Cross

ICRF Investigative Committee of the Russian Federation

ILC International Law Commission

JIT Joint Investigation Team

“LPR” “Lugansk People’s Republic”

OHCHR Office of the UN High Commissioner for Human Rights

OSCE Organization for Security and Cooperation in Europe

OM Public Prosecution Service of the Netherlands

SBU Security Service of Ukraine

SMM OSCE Special Monitoring Mission

The European Court of Human Rights (Grand Chamber), sitting as a Grand Chamber composed of:

Síofra O’Leary, Georges Ravarani, Marko Bošnjak, Pere Pastor Vilanova, Ganna Yudkivska, Krzysztof Wojtyczek, Faris Vehabović, Iulia Antoanella Motoc, Jon Fridrik Kjølbro, Yonko Grozev, Stéphanie Mourou-Vikström, Tim Eicke, Lətif Hüseynov, Jovan Ilievski, Jolien Schukking, Erik Wennerström, Anja Seibert-Fohr, judges ,

and Søren Prebensen, Deputy Grand Chamber Registrar,

Having deliberated in private on 26 and 27 January 2022 and 30 November 2022,

Decides as follows:

PROCEDURE

1 . The case originated in three applications (nos. 20958/14, 43800/14 and 42410/15) against the Russian Federation lodged with the Court under Article 33 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Government of Ukraine (“the applicant Ukrainian Government”) on 13 March 2014, 13 June 2014 and 26 August 2015 respectively; and an application (no. 28525/20) against the Russian Federation lodged with the Court under Article 33 of the Convention by the Government of the Kingdom of the Netherlands (“the applicant Dutch Government”) on 10 July 2020.

2 . Application no. 20958/14, which concerned events in Crimea, was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 13 March 2014, the President of the Third Section decided to apply Rule 39 of the Rules of Court calling upon both the High Contracting Parties concerned to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Articles 2 and 3 of the Convention. On 16 December 2020, that measure was lifted in relation to Crimea in the admissibility decision in Ukraine v. Russia ( re Crimea) ([GC] (dec.), nos. 20958/14 and 38334/18, 16 December 2020).

3 . On 14 May 2014, in a detailed letter updating the Court on whether the parties were complying with its Rule 39 indication, the applicant Ukrainian Government first advanced allegations concerning events in eastern Ukraine. A supplement to the application formalising allegations of violations of the Convention in eastern Ukraine was lodged on 12 June 2014. On 8 September 2014, further detailed correspondence concerning compliance with the Rule 39 indication, covering events in Crimea and eastern Ukraine from May to September 2014, was received. A final supplement to the application covering developments in Crimea and eastern Ukraine was submitted on 20 November 2014.

4 . Application no. 43800/14 concerned the alleged abduction by armed separatists in eastern Ukraine of three groups of children and accompanying adults, and their transfer to Russia. It was also allocated to the Third Section. A request for Rule 39 measures was made on 13 June 2014 in respect of the first group of children. On the same day, the President of the Third Section decided to indicate to the Government of Russia (“the respondent Government”), under Rule 39 of the Rules of Court, that they should ensure respect for the Convention rights of the persons concerned and their immediate return to Ukraine. On 26 June 2014, following the return of the children to Ukraine, that interim measure was lifted.

5 . Application no. 42410/15 concerned events in Crimea and eastern Ukraine. It was also allocated to the Third Section.

6 . Application no. 28525/20 brought by the applicant Dutch Government concerned the downing of flight MH17 causing the deaths of all 298 people on board. It was allocated to the First Section.

7. The applicant Ukrainian Government were initially represented by their former Agent, Mr I. Lishchyna, succeeded by Ms O. Davydchuk and Ms M. Sokorenko, Agent of the Ukrainian Government at the European Court of Human Rights.

8. The applicant Dutch Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs.

9. The respondent Government were initially represented by their former Representatives, Mr G. Matyushkin and Mr M. Galperin, succeeded by Mr M. Vinogradov, Representative of the Russian Federation at the European Court of Human Rights.

10 . On 20 November 2014 and 29 September 2015, the respondent Government were given notice of applications nos. 20958/14, 43800/14 and 42410/15, lodged by the applicant Ukrainian Government, and were invited to submit observations on the admissibility of the complaints. All three applications were subsequently transferred to the First Section of the Court and observations were filed by both the applicant Ukrainian Government and the respondent Government.

11. Meanwhile, on 9 February and 29 November 2016, the Chamber divided application nos. 20958/14 and 42410/14 into four separate cases. Complaints concerning events in Crimea remained registered under the above case numbers, while the complaints concerning events in eastern Ukraine were given new application nos. 8019/16 and 70856/16 respectively (see Ukraine v. Russia ( re Crimea) , cited above, § 9). The complaints concerning events in Crimea are being examined separately and a decision on admissibility was adopted in those proceedings on 16 December 2020 (see Ukraine v. Russia ( re Crimea) , cited above).

12 . On 20 February 2018, a Chamber of the First Section composed of Linos-Alexandre Sicilianos, President, Kristina Pardalos, Ganna Yudkivska, Robert Spano, Aleš Pejchal, Dmitry Dedov and Jovan Ilievski, judges, assisted by Abel Campos, Section Registrar, decided to give notice to the parties of its intention to relinquish jurisdiction to deal with application nos. 8019/16 and 70856/16 in favour of the Grand Chamber. On 7 May 2018, the Chamber decided to relinquish jurisdiction in favour of the Grand Chamber, having regard to the fact that neither party had objected to such relinquishment (Article 30 of the Convention and Rule 72 §§ 1 and 4).

13. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. Dmitry Dedov, the judge elected in respect of the Russian Federation, withdrew from sitting in the case as from 1 January 2019 (Rule 28). In accordance with Rule 29, the President decided to appoint Bakhtiyar Tuzmukhamedov to sit as an ad hoc judge as from that date. The latter was subsequently replaced by Mikhail Lobov as national judge (see paragraph 32 below). Robert Spano’s term as President of the Court came to an end. Síofra O’Leary succeeded him in that capacity and took over the presidency of the Grand Chamber in the present case (Rule 9 § 2). When his term of office expired, Robert Spano was replaced in the composition of the Grand Chamber by Erik Wennerström, substitute judge, by virtue of Rule 24 § 3. Ganna Yudkivska continued to sit following the expiry of her terms of office, in accordance with Article 23 § 3 of the Convention and Rule 24 § 4. After the withdrawal of the national judge (see paragraph 39 below), Anja Seibert-Fohr, substitute member, became a full member in accordance with Rule 24 § 3.

14. On 11 June 2018, the Grand Chamber decided to join application nos. 8019/16 and 70856/16 and renamed the case Ukraine v. Russia ( re Eastern Ukraine) , no. 8019/16.

15. On 5 October 2018, the Grand Chamber decided to hold a hearing on both the admissibility and merits of that case (Article 29 § 2). On 20 December 2018, the parties were informed and were invited to submit their memorials on the admissibility and merits of the case.

16. In their respective letters of 20 March 2019 and 4 April 2019, the Governments of Russia and Ukraine expressed their opposition to the Grand Chamber’s decision to hold a hearing on the admissibility and merits of the case and requested that the hearing be devoted to admissibility issues only.

17 . On 10 May 2019, the Grand Chamber decided to examine and decide on admissibility separately, as requested by the parties. The parties were informed of the decision on 15 May 2019 and were given a new time-limit to submit memorials addressing admissibility only. They were also invited to provide submissions on what should be the format of any fact-finding in respect of the admissibility of the application and to suggest a preliminary list of witnesses they considered were essential to cover all aspects of their admissibility arguments so that the Court could take a decision on whether, and if so how, a fact-finding exercise at the admissibility stage would be conducted.

18 . In their letter of 30 August 2019, the Ukrainian Government expressed the view that there was no need for the Court to take any oral testimony during the pre-admissibility phase of the case and that the hearing of witnesses should be envisaged if the case was declared admissible. On 2 September 2019, the Russian Government submitted that consideration of an evidence hearing should await the outcome of an admissibility hearing conducted in the normal way.

21 . Following the lodging of application no. 28525/20 by the applicant Dutch Government (see paragraphs 1 and 6 above), requests for third-party intervention were made by the Government of Canada, the Human Rights Law Centre of the University of Nottingham (“HRLC”), the applicants in the cases of Ayley and Others v. Russia (no. 25714/16), Angline and Others v. Russia (no. 56328/18), Bakker and Others v. Russia (no. 22719/19) and Warta and Others v. Russia (no. 3568/20) (who are relatives of the victims of flight MH17), and the MH17 Air Disaster Foundation (“ Stichting Vliegramp MH17 ”) in the Netherlands.

22. On 27 November 2020, the Grand Chamber decided to join the three applications (no. 8019/16, no. 43800/14 and no. 28525/20) in accordance with Rules 42 § 1 and 71 § 1 of the Rules of Court and in the interests of the efficient administration of justice.

23 . The supplementary memorials of the applicant Ukrainian Government and the respondent Government (see paragraph 20 above) were received on 7 December 2020.

24. Also on 7 December 2020, the respondent Government asked the Court to take immediate measures under Rule 39 and Rule 44A of the Rules of Court in respect of their complaint concerning the alleged involvement of Ukraine in the Myrotvorets website (see paragraph 485 below). On 2 February 2021, after considering the parties’ submissions on the matter, the President refused the request on the ground that it was insufficiently substantiated to warrant any measure being indicated.

25 . The requests for third-party intervention made in application no. 28525/20 (see paragraph 21 above) were treated as requests to intervene in the joined case pending before the Grand Chamber in so far as the complaints in that application were concerned. On 18 December 2020, the Government of Canada and the HRLC were granted permission to lodge amicus curiae submissions. The applicants in the individual cases and the MH17 Air Disaster Foundation (“MH17 applicants”) were recognised as interested third parties and invited to provide joint submissions confined to the factual and legal aspects of the case relevant to the specific interest of the next of kin of the victims of flight MH17. The third parties provided the Court with their written submissions in January and February 2021.

26 . Meanwhile, on 21 December 2020, after consulting the parties as to the further written procedure in the case, the Court invited them to submit memorials (“first-stage memorials”) in respect of the complaints relevant to them. The parties were subsequently invited to include in their memorials any observations which they wished to make in reply to the third-party submissions (see paragraph 25 above). First-stage memorials were submitted on 12 March 2021. The parties were then invited to submit further, final memorials (“second-stage memorials”) and did so on 21 May 2021.

27. On 10 June 2021, the parties were notified that a hearing date of 24 November 2021 had been fixed for the hearing on admissibility. On 28 June 2021 they were informed about the composition of the Grand Chamber constituted to consider the case.

28 . On 22 July 2021, the Russian Federation lodged an application under Article 33 of the Convention against Ukraine ( Russia v. Ukraine , no. 36958/21) and requested that it be joined to nos. 8019/16 and 28525/20. The application was allocated to the First Section.

29. On 19 October 2021, the Grand Chamber decided to reject the Russian Government’s request for joinder on the basis that accepting it would not be in the interests of the efficient administration of justice.

30. On 8 November 2021, Mr Tuzmukhamedov, the ad hoc judge appointed pursuant to Rule 29 (see paragraph 13 above) informed the Court that he withdrew from sitting in the case, effective immediately.

31. On 12 November 2021, the President decided to adjourn the hearing and fixed a new date of 26 January 2022 for the hearing on admissibility.

32 . On 10 January 2022, the judge elected in respect of the Russian Federation, Mikhail Lobov, was sworn in and the composition of the Grand Chamber was duly updated. The parties were informed about the revised composition of the Grand Chamber.

33. A hearing took place in public in the Human Rights Building, Strasbourg, on 26 January 2022.

There appeared before the Court:

(a) for the respondent Government Mr M. Vinogradov , Agent , Mr D. Grunis , Mr A. Devyatko , Ms A. Khamenkova , Ms Y. Afanasyeva , Advisers ;

(b) for the applicant Ukrainian Government Mr D. Maliuska , Minister of Justice, Agent , Mr B. Emmerson, QC, Mr P. Hood , Ms A. O’Reilly , Counsel , Ms V. Kolomiiets , Ms M. Sokorenko , Ms O. Kolomiiets, Mr I. Lishchyna, Advisers ;

(c) for the applicant Dutch Government Ms B. Koopman , Agent , Mr R. Lefeber , Ms L. van Heest , Ms A. Aagten , Ms R. de Ruiter, Advisers ,

Mr P. Ploeg, Chair of the MH17 Air Disaster Foundation.

34. The Court heard addresses and replies to judges’ questions by Mr Vinogradov, Mr Maliuska, Mr Emmerson, Ms Koopman, Mr Ploeg and Mr Lefeber.

35 . On 16 March 2022, the Committee of Ministers of the Council of Europe, in the context of a procedure launched under Article 8 of the Statute of the Council of Europe, adopted Resolution CM/Res(2022)2, by which the Russian Federation ceased to be a member of the Council of Europe as from 16 March 2022.

36 . On 22 March 2022, the Court, sitting in plenary session in accordance with Rule 20 § 1, adopted the “Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights”. It stated that the Russian Federation would cease to be a High Contracting Party to the Convention on 16 September 2022.

37. On 5 September 2022, the Plenary Court took formal notice of the fact that the office of judge with respect to the Russian Federation would cease to exist after 16 September 2022. This, as a consequence, also entailed that there was no longer a valid list of ad hoc judges who would be eligible to take part in the consideration of the cases where the Russian Federation was the Respondent State.

38. By letter of 8 November 2022, the respondent Government were informed that it was envisaged, in respect of applications against that State that the Court was competent to deal with, to appoint one of the sitting judges of the Court to act as an ad hoc judge for the Russian Federation (applying by analogy Rule 29 § 2 of the Rules of Court). The respondent Government were invited to comment on that arrangement by 22 November 2022 but did not submit any comments.

39 . On 23 November 2022, Mikhail Lobov, the former judge elected in respect of the Russian Federation (see paragraph 32 above), decided to withdraw from sitting in the present case (Rule 28 § 2 (c) and (e) of the Rules of Court).

40. The President accordingly decided to appoint an ad hoc judge among the members of the composition, applying by analogy Rule 29 § 2 of the Rules of Court.

THE FACTS

41. The present proceedings concern events in the Donetsk and Luhansk regions, in the Donbass area of eastern Ukraine, which began in the spring of 2014. The majority of the facts relevant to these proceedings are contested by the parties and their detailed accounts are set out below (see paragraphs 168 ‑ 369). The evidence they have relied on is set out in detail in an Annex to this Decision; references in this Decision in the form “A XXX” refer to paragraph XXX of the Annex.

42. This section provides an introductory, brief overview of the relevant context. The facts described in this section are either uncontested or are not seriously contested, or are indisputably established on the evidence. For these reasons, there are no cross-references in this section to the evidence or submissions which may be relevant to the facts described here. As explained, a fuller account of the facts as submitted by each of the parties is set out in a subsequent section (see paragraphs 168-369).

43. In November 2013, the government of Ukraine announced that they would suspend the preparations for signing an Association Agreement with the European Union (EU) and would renew the dialogue on trade and economic matters with the Russian Federation. This led to mass protests against the government across the country. These deteriorated into violent clashes between security forces and protesters. The protest movement became known as “Euromaidan” (after Independence Square (“Maidan Nezalezhnosti”) in Kyiv. See Shmorgunov and Others v. Ukraine , nos. 15367/14 and 13 others, §§ 9-17, 21 January 2021).

44. Violence escalated sharply on the evening of 18 February 2014. Hundreds of protestors, and some law enforcement officials, were killed or injured over the following days. On 21 February 2014, the then President of Ukraine, Viktor Yanukovych, and opposition leaders signed a compromise agreement which envisaged early elections by the end of the year.

45. On 22 February 2014, President Yanukovych left Kyiv and went to the Russian Federation. Later that day, the Ukrainian Parliament voted to remove him from office on account of his failure to perform his constitutional duties. It elected a new speaker, who became acting President of Ukraine pending new elections on 25 May 2014. A new interim government was put in place. It was not recognised by the government of the respondent State.

46 . Subsequently, unidentified armed men in green military uniforms without insignia began taking over strategic infrastructure in Crimea. On 27 February 2014, armed groups took over the building of the Supreme Council of the Autonomous Republic of Crimea. Later that day, at gunpoint, members of the Supreme Council dismissed the government of Crimea and appointed Sergey Aksyonov as “Prime Minister” (see paragraph 98 below). It was also decided to hold a “referendum” on the future status of Crimea (see Ukraine v. Russia ( re Crimea) [GC] (dec.), nos. 20958/14 and 38334/18, §§ 32-66 and 149-168, 16 December 2020).

47 . In early March 2014, pro-Russian protests began across eastern regions of Ukraine, including in the Donetsk and Luhansk regions where a large Russian minority resided. The protestors objected to what they claimed to have been an unconstitutional change of power in Ukraine.

48. The “referendum” in Crimea took place on 16 March 2014 and according to the published results there was overwhelming support for Crimea joining the Russian Federation. On 18 March 2014, Crimea therefore purported to join the Russian Federation.

49. From early April 2014, there was a rapid escalation of violence in eastern Ukraine. Some of the protestors formed armed groups which started to take control by force of public buildings as well as police and security facilities in cities and towns across the Donetsk and Luhansk regions. They set up barricades and checkpoints to maintain control of the areas seized. They demanded regionalisation and/or separatism.

50. On 6 April 2014, separatists in Luhansk seized the building of the Security Service of Ukraine (“SBU”) regional office and declared it to be the headquarters of the “South-East Army”.

51 . That night, separatists occupied the Regional State Administration building in Donetsk and on 7 April 2014 they declared the independence of the “Donetsk People’s Republic” (“DPR”).

52 . On 12 April 2014, a group of armed men led by Russian national Igor Girkin (see paragraph 108 below) seized public buildings in Slovyansk, in the Donetsk region. Public administration buildings in a number of surrounding towns were also seized in the following days.

53. On 14 April 2014, the government of Ukraine launched an “Anti ‑ Terrorist Operation” (“ATO”) to re-establish control over territory controlled by the separatist armed groups, deploying units of the Ukrainian Armed Forces supported by volunteer battalions. Meanwhile, an increasing number of troops of the armed forces of the Russian Federation were deployed in the border area near Ukraine.

54. On 17 April 2014, following negotiations between the representatives of Ukraine, the EU, the United States and the Russian Federation, the Joint Geneva Statement on Ukraine was published. The parties notably agreed that all sides should refrain from any violence, intimidation or provocative actions; that all illegal armed groups should be disarmed; that all illegally seized buildings should be returned to legitimate owners; and that all illegally occupied streets, squares and other public places in Ukrainian cities and towns should be vacated.

55. By 20 April 2014, the entire town of Slovyansk was under the control of armed groups.

56. On 27 April 2014, the “Lugansk People’s Republic” (“LPR”) was declared in Luhansk. On 29 April 2014, the Luhansk Regional State Administration building was stormed and occupied by separatists.

57. In the following days and weeks further buildings in towns and cities in the Donetsk and Luhansk regions were taken over by separatists. Meanwhile, on 30 April 2014, the acting President of Ukraine announced that the government was no longer in control of certain parts of those regions.

58 . In early May, the first detachments of Cossack fighters arrived in Antratsyt, Luhansk region, headed by Nikolay Kozitsyn (see paragraph 114 below). Various groups of Cossacks went on to occupy parts of the west (under the command of two other Cossack commanders, Aleksey Mozgovoy and Pavel Dryomov – see, respectively, paragraphs 117 and 106 below) and the entire southern part (under the command of Mr Kozitsyn) of the Luhansk region.

59 . On 11 May 2014, so-called “independence referendums” took place in the parts of the Donetsk and Luhansk regions under separatist control. The “DPR” and the “LPR” announced that a majority had voted in favour of independence. They declared themselves to be sovereign states and formed new “governments”.

60 . On or around 16 May 2014, the “Supreme Council” of the “DPR” approved Alexander Borodai, a Russian national (see paragraph 105 below), to head the new government and Mr Girkin as the head of the “Security Council” and “Minister of Defence” of the “DPR”. In the “LPR”, Valery Bolotov became “President” and Igor Plotnitsky became “Minister of Defence” (see paragraphs 104 and 122 below). Vassily Nikitin became “Prime Minister” (see paragraph 118 below).

61 . On 24 May 2014, “DPR” and “LPR” leaders signed a joint declaration on the establishment of the “Union of People’s Republics”, alternatively referred to as the “Confederate Alliance of People’s Republics of Novorossiya”.

62. On 25 May 2014, Presidential elections took place in Ukraine. In the parts of Donbass under separatist control, voting did not take place.

63. Over the ensuing weeks there was a significant deterioration in the security situation in Donbass. There were reports of an escalation of abductions, arbitrary detentions, summary executions, torture, ill-treatment and looting by the armed groups.

64 . On 6 June 2014, the “Normandy Format”, which included Germany, France, Ukraine and the Russian Federation, was established at a 6 June 2014 commemoration of the seventieth anniversary of the allied landings in Normandy. The diplomatic efforts of this group led to the establishment of the Trilateral Contact Group for the peaceful settlement of the situation in eastern Ukraine, composed of senior representatives from Ukraine, the Russian Federation and the Organization for Security and Co-operation in Europe (OSCE). The Trilateral Contact Group held its first session on 8 June 2014.

65. In the course of June and July 2014, with the exception of a ten-day period from 20 June 2014 when the President of Ukraine announced a unilateral ten ‑ day ceasefire, the Ukrainian armed forces regained control over a number of towns and strategic positions in Donbass.

66 . On 5 July 2014, the separatists retreated to Donetsk from Slovyansk and surrounding towns.

67. In early July, Mr Bolotov dismissed the “LPR” government. Marat Bashirov (see paragraph 101 below) was appointed acting “Prime Minister”.

68. From around mid-July, intense shelling began in Donbass, striking targets in Ukrainian- and separatist-held territory. There was heavy fighting in the south-eastern part of the Donetsk region as the separatists sought to hold the territory they had occupied and to gain control over a passage of land which would link the “DPR” to the Russian border in the south. The Ukrainian forces used heavy artillery and air support to attack separatist positions.

69. On 17 July 2014, Malaysian Airlines flight MH17 from Amsterdam to Kuala Lumpur was downed near Snizhne, in the Donetsk region. All 298 civilians aboard were killed. 196 of the victims were nationals of the Netherlands. According to the passenger manifest, the remaining victims were nationals of Malaysia, Australia, Indonesia, the United Kingdom, Belgium, Germany, the Philippines, Canada or New Zealand. Some of the deceased had dual nationality (see the list of nationalities referred to by the applicant Dutch Government at paragraph 316 below). The Netherlands, working closely with Ukraine and other affected States, coordinated the recovery and repatriation efforts.

70. A new round of peace talks started on 31 July 2014 in Minsk, Belarus, in the context of the Trilateral Contact Group (see paragraph 64 above), with the informal participation of representatives of the “DPR” and the “LPR”.

71 . On 7 August 2014, authorities from the Netherlands, Australia, Belgium and Ukraine established a joint investigation team (“JIT”) to carry out a criminal investigation into the crash of flight MH17, with the participation of Malaysia and the EU’s Agency for Criminal Justice Cooperation (“Eurojust”).

72 . In early August, Mr Borodai and Mr Girkin stepped down from their posts in the “DPR government”. Alexander Zakharchenko (see paragraph 131 below) took over as “Prime Minister” of the “DPR”. In the “LPR”, Mr Bolotov resigned in favour of Mr Plotnitsky, who subsequently also took over from Mr Bashirov as “Prime Minister” before appointing Gennady Tsyplakov (see paragraph 130 below) to that post.

73. Meanwhile, also in early August 2014, Ukrainian forces launched an operation to regain control over the town of Ilovaisk, south-east of Donetsk. By mid ‑ August, they had taken control of the surrounding villages and from 18 to 28 August 2014, Ukrainian volunteer battalions fought the separatists positioned in the town itself and took partial control of it. However, by 27 August 2014, Ukrainian forces were surrounded by separatist armed groups and on 29 August 2014 they were forced to retreat from the town. During the retreat, many of them were killed, injured or taken captive.

74 . On 5 September 2014, senior representatives of Ukraine, the Russian Federation, the OSCE, the “DPR” and the “LPR” signed the Protocol on the results of consultations of the Trilateral Contact Group (“Minsk Protocol”), which set out a 12 ‑ point peace plan including an immediate ceasefire. Despite the ceasefire, fighting continued. A Memorandum was signed on 19 September 2014 outlining the parameters for the implementation of commitments of the Minsk Protocol. A line of separation was created.

75 . Meanwhile, on 9 September 2014, the Dutch Safety Board (DSB”), tasked with the technical investigation in accordance with Article 26 of the Convention on International Civil Aviation (Chicago Convention) into the cause of the crash of flight MH17, published its preliminary report. The report disclosed that no technical or operational issues had been found in respect of the aircraft or the crew and that the damage appeared to indicate that the aircraft had been penetrated by a large number of high-energy objects from outside.

76 . In September 2014, the merger of the armed groups of the “DPR” and the “LPR” under the umbrella of the United Armed Forces of Novorossiya was announced. The two militias were to become the “DPR 1st Army Corps” and “LPR 2nd Army Corps”.

77 . On 26 September 2014, the Joint Center for Control and Coordination of issues related to the ceasefire regime and the stabilization of the situation (“JCCC”) was established with the participation of representatives of the armed forces of Ukraine and the Russian Federation.

78. In January 2015, increased hostilities began around Donetsk airport. In February 2015, intense fighting began around Debaltseve.

79. As a result of peace talks held on 11 and 12 February 2015 in Minsk, the “Package of Measures for the Implementation of the Minsk Agreements” (“Minsk II”) was adopted. Minsk II provided for a ceasefire to enter into force from 15 February 2015, the withdrawal of heavy weaponry from the contact line, the establishment of a security zone and the withdrawal of foreign armed formations, mercenaries and weapons from the territory of Ukraine.

80. On 18 May 2015, the separatists announced the indefinite freezing of the Novorossiya project (see paragraph 61 above).

81. On 13 October 2015, the DSB (see paragraph 75 above) published its final report in the context of the technical investigation into the cause of the crash of flight MH17. It concluded that flight MH17 had been downed by a Buk missile fired from separatist-held territory. It said that further forensic research was required to determine the exact launch location.

82. On 28 September 2016, the JIT (see paragraph 71 above) presented its first partial findings from its criminal investigation into the downing of flight MH17. It said that flight MH17 had been downed by a Buk missile from the 9M38-series, that the missile had been launched by a Buk-TELAR from a field south of Snizhne and west of Pervomaiskyi under the control of separatists, and that the Buk ‑ TELAR had been transported from the Russian Federation into Ukraine and had returned to Russia after the launch.

83. In January and February 2017, there was an increase in the intensity of hostilities around Avdiivka and Makiivka.

84. In late December 2017, the Russian representatives left the JCCC (see paragraph 77 above).

85. On 24 May 2018, the JIT announced that the Buk-TELAR that had downed flight MH17 belonged to the 53rd Anti-Aircraft Missile Brigade (“AAMB”) of the armed forces of the Russian Federation.

86 . In a joint diplomatic note of 25 May 2018 to the Ministry of Foreign Affairs of the Russian Federation from their embassies, the Netherlands and Australia invoked the State responsibility of the Russian Federation for the downing of flight MH17. They invited the Russian Federation to enter into negotiations in relation to the legal consequences flowing from that responsibility. A number of meetings subsequently took place; the parties involved agreed to the confidentiality of the meetings.

87 . On 19 June 2019, the JIT announced that the Public Prosecution Service of the Netherlands (“OM”) was bringing charges against four men (three Russian nationals and one Ukrainian), for causing the crash of flight MH17, resulting in the death of all persons on board, and for the murder of the 298 persons on board that flight. The defendants were Mr Girkin (see paragraph 52 above and 108 below), Sergey Dubinskiy (see paragraph 107 below), Oleg Pulatov (see paragraph 124 below) and Leonid Kharchenko.

88 . The trial started on 9 March 2020 before the first instance court in The Hague. Only Mr Pulatov instructed legal representation and entered an appearance in the proceedings. The other defendants were tried in absentia .

89 . On 21 February 2022, the State Duma of the Russian Federation passed a bill to officially recognise the “DPR” and “LPR” as independent states. The bill was approved by the Russian President.

90 . On 24 February 2022, four weeks after the hearing in the present case, the Russian President announced the start of what he termed a “special military operation” in Ukraine and the deployment of Russian troops there. In that context, fighting intensified in eastern Ukraine and Ukrainian troops were forced to retreat from a number of areas in Donbass. Russian troops were also deployed in other areas of Ukraine, advancing deep into Ukrainian territory. Ukrainian forces subsequently launched a successful counter ‑ offensive, recovering some of the areas previously lost. Heavy fighting continues.

91. On 10 June 2022, the judges at the criminal trial before the first instance court in The Hague (see paragraph 88 above) retired to consider their verdict.

92. On 30 September 2022, after “referendums” in the occupied areas of the Donetsk, Luhansk, Zaporizhzhia and Kherson regions, the Russian President declared that these regions of Ukraine would be formally incorporated into the Russian Federation and signed “treaties” to that effect. Part of the regions concerned was not in the hands of the Russian Federation at the time of the declaration and Ukrainian control over further parts has since been restored (see paragraph 90 above).

93 . On 17 November 2022, the first instance court in The Hague delivered its verdict in the criminal proceedings in respect of the downing of flight MH17. It determined that flight MH17 was downed by a Buk missile fired from an agricultural field near Pervomaiskyi, resulting in the deaths of all 283 passengers and 15 crew members. It further found that the Russian Federation had overall control over the “DPR” from mid-May 2014 until at least the crash of flight MH17 and that thus the conflict was an international armed conflict. It found Mr Girkin, Mr Dubinskiy and Mr Kharchenko guilty of both charges and sentenced them to life imprisonment. Mr Pulatov was acquitted. It is not known, as at the date of the adoption of the present decision, whether the judgment has been appealed.

94. On 12 June 2014, a bus with twenty-five children (sixteen orphans or children without parental care from a care home in Snizhne and nine children in foster care) and three accompanying adults travelling to a respite centre in eastern Ukraine was stopped at a checkpoint in the “DPR”. The sixteen orphans and two accompanying adults then crossed the border into the Russian Federation, with a “DPR” escort, at the Dolzhanskyy border checkpoint. Following the grant of interim measures by the Court (see paragraph 4 above), they returned to Ukraine the following day.

95 . On 26 July 2014, sixty-one children from an orphanage in Luhansk Region (forty-three of whom were under the age of five), four further minors and twenty-two adult employees of the orphanage crossed into the Russian Federation at the Izvaryne-Donetsk border checkpoint at the Ukraine-Russia border. They were accompanied to the border by “LPR” representatives. They returned to Ukraine the following day.

96 . On 8 August 2014, eight children from a care home for babies in Luhansk were transported across the Ukraine-Russia border at the Izvaryne ‑ Donetsk checkpoint. The children were aged between eight months and two years, and six of them had cerebral palsy. They returned to Ukraine on 13 August 2014.

97 . Separatists who have played an important role in the events in eastern Ukraine and other persons of interest in respect of those events are listed below together with brief information about their backgrounds. Subsequent sections provide fuller information about the separatist armed groups and the political structures in the separatist entities. Many of the separatists had “call ‑ signs” which they used during the conflict; these are indicated in inverted commas where known.

98 . Sergey Valeryevich Aksyonov is currently serving as “Head of the Republic of Crimea”. He was “appointed” “Prime Minister” of Crimea at gunpoint on 27 February 2014 (see paragraph 46 above and Ukraine v. Russia ( re Crimea) , cited above, §§ 42-47). On 14 April 2014, after Crimea had been “joined” to the Russian Federation, he was appointed interim “Head of the Republic of Crimea” by the Russian President. He was “elected” to the position in 2014 and again in 2019.

99 . Alexander Yevgenevych Ananchenko is a Donbass native and “DPR” politician.

100 . Vladimir Yuryevich Antyufeyev (also written in the Roman alphabet as Antiufeev) is a Russian national with a background in national security. Between 1992 and 2012, he was the head of the “Ministry of State Security” of Transdniestria, under the name Vadim (or Vladimir) Shevtsov. He worked on cooperation with South Ossetia and Abkhazia during the 2008 war. He served as “first Deputy Prime Minster” of the “DPR” in summer 2014 before returning to Moscow.

101 . Marat Faatovich Bashirov is a Russian national and political analyst based in Moscow. In summer 2014, he was the “Prime Minister” of the “LPR”.

102 . Alexander Aleksandrovich Bednov (“Batman”) was a Donbass native and commander of a separatist armed group in the “LPR”. He was killed in Luhansk on 1 January 2015. There are conflicting accounts of how he died.

103 . Russian national Igor Nikolaevich Bezler (“Bes”) was a separatist commander in the “DPR” in 2014. He formerly served in the Soviet Army in Afghanistan and fought against the separatist forces in Chechnya. He is allegedly a former agent of Russian military intelligence (“GRU”) with the rank of lieutenant colonel. He left the “DPR” in autumn 2014; information on his current whereabouts is not known.

104 . Donbass native Valery Dmitrievich Bolotov formerly served in the Soviet Army. He was a separatist commander in the “LPR” in 2014. He died in Moscow in 2017.

105 . Alexander Yurevich Borodai is a Moscow-based Russian national. He was the first “Prime Minister” of the “DPR”. Before going to Donetsk, he had worked as an adviser to Mr Aksyonov in Crimea (see paragraph 98 above). He had also worked as a consultant to Konstantin Malofeyev (see paragraph 116 below). He was a long-standing acquaintance of Mr Girkin and had previously fought on the side of Russia in Transdniestria. In 2021, he was elected as a member of the Russian State Duma for the ruling United Russia party.

106 . Donbass native Pavel Dryomov (also written in the Roman alphabet as Dremov) (“Batya”) was a Cossack commander. He was killed by a car bomb in eastern Ukraine in December 2015.

107 . Sergey Nikolayevich Dubinskiy (“Khmuryi”), also known as Colonel Petrovsky, is a Russian national and former Major General of the GRU. He fought in Afghanistan, South Ossetia and Chechnya and was acquainted with Mr Girkin prior to the events in eastern Ukraine. He served under Mr Girkin at the beginning of the conflict and became head of the military intelligence service of the “DPR” after the “independence referendum”.

108 . Russian national Igor Ivanovich Girkin (or Strelkov) (“Strelok”) was the first “Minister of Defence” of the “DPR”. He held the rank of Colonel in the Russian Federal Security Service (“FSB”), although he claimed to have retired prior to his involvement in the conflict. He fought for Russia in Transdniestria and in Chechnya. He is a former employee of Mr Malofeyev (see paragraph 116 below).

109 . Sergey Yurievich Glazyev is a Russian economist and politician. He was an adviser to the President of the Russian Federation at the time of the events in Crimea and continued in this role until 2019.

110 . Pavlo Yurievich Gubarev is a Donbass native. In 2014, he founded the “People’s Militia of Donbass”. According to reports, he is currently fighting with the Russian armed forces in Ukraine.

111 . Alexander Sergeyevich Khodakovsky (“Skif”) is a Donbass native and former commander of the “Alpha” special unit of the SBU. He has been a separatist commander in the “DPR” since 2014.

112 . Vladimir Petrovich Kononov is a Donbass native and “DPR” politician.

113 . Ukrainian national Oleg Kovalchuk was a “DPR” politician and former chief of police of Luhansk. No information has been provided as to his current whereabouts.

114 . Russian national Nikolay Ivanovich Kozitsyn is the ataman of the “International Union of Public Associations ‘All-Great Don Army’” (non ‑ registered Cossacks), based in the Rostov region of Russia. The “All ‑ Great Don Army” created the “Cossack National Guard” to participate in the fighting in eastern Ukraine. Mr Kozitsyn previously participated in the conflicts in Transdniestria and Abkhazia.

115 . Sergey Kozlov is a Donbass native. He was the Prime Minister of the “LPR” from 2015 to September 2022.

116 . Konstantin Valeryevich Malofeyev (also written in the Roman alphabet as Malofeev) is a Russian “oligarch” who openly supported the incorporation of parts of Ukraine into Russia.

117 . Aleksey Borisovich Mozgovoy was a Donbass native and a separatist commander in the “LPR”. He had Cossack roots but was not directly linked to the Don Cossacks headed by Mr Kozitsyn (see paragraph 114 above). Mr Mozgovoy was killed in an attack on his convoy in the “LPR” in 2015.

118 . Vasily Aleksandrovich Nikitin was born in Uzbekistan. At the time of the outbreak of the conflict in spring 2014, he was living in Luhansk. He was the first “Prime Minister” of the “LPR”.

119 . Leonid Ivanovich Pasechnik is a Donbass native. He formerly worked for the SBU. He became an “LPR” politician and has been the head of the “LPR” since 2018.

120 . Arsen Sergeyevich Pavlov (“Motorola”) was a Russian national and a former member of the Russian military. He was killed by a bomb at his apartment building in Donetsk in October 2016. On 18 May 2018 he was posthumously awarded the Order for Courage by the President of the Russian Federation for courage and dedication shown in the course of fulfilling the tasks of ensuring the protection of the rights and freedoms of compatriots (Decree of the President of the Russian Federation dated 18.05.2022 No. 290 “On Awarding State Awards of the Russian Federation”).

121 . Mikhail Pimenov (“Verin”) is a Russian national and was a “DPR” separatist commander. He is currently the deputy director of staff of the Union of Donbass Volunteers, based in Moscow.

122 . Igor Venediktovich Plotnitsky was born in Ukraine and resided in the Luhansk region prior to the events of spring 2014. He was a former officer of the Soviet Army. He was an “LPR” politician and head of the “LPR” between 2014 and 2017.

123 . Vyacheslav Vladimirovich Ponomaryov is a Donbass native. He served in the Soviet Army. He was involved in the early stages of the conflict in Slovyansk, where he declared himself “People’s Mayor”.

124 . Oleg Pulatov (“Giurza”) is a Russian national and a former GRU officer. He was deputy head of the “DPR” intelligence service in 2014.

125 . Andrey Yevgenyevich Purgin is a Donbass native. He was a “DPR” politician and “Prime Minister” in 2014-2015.

126 . Denis Vladimirovich Pushilin is a Donbass native. He has been a “DPR” politician since 2014 and head of the “DPR” since 2018.

127 . Dmitry Aleksandrovich Semenov is a Russian national who was an “LPR” politician in the summer of 2014.

128 . Vladislav Yuryevich Surkov is a Russian national and was an aide to the President of the Russian Federation at the time of the outbreak of the conflict.

129 . Mikhail Sergeyevich Tolstykh (“Givi”) was a Donbass native and separatist commander in the “DPR”. He had previously fought alongside Russian troops during the 2008 conflict in Georgia. He was killed in an explosion at his office in February 2017.

130 . Gennadiy Tsyplakov was a Donbass native and “LPR” politician. He was arrested and detained by the “LPR” authorities in September 2016 and subsequently found hanged in his cell.

131 . Alexander Vladimirovich Zakharchenko was a Donbass native. He was a separatist commander and “DPR” politician. He was head of the “DPR” from 2014 until 2018, when he was killed by a bomb planted in a café in Donetsk.

132. The precise boundaries of the areas of operation as well as the allegiances and chains of command of the different separatist armed groups active at the outset of hostilities in eastern Ukraine have not been clearly established. It would appear that the groups themselves evolved during the early months of the conflict. The parties’ submissions and the various reports published about the conflict enable the following general picture to be established in respect of the separatist armed groups that took part in the initial period of the conflict. The armed groups that remained were ultimately all subsequently assimilated into the formal armed structures of the “DPR” and the “LPR” (see paragraph 76 above).

133 . The “Donbass People’s Militia” emerged in March 2014, founded by Mr Gubarev (see paragraph 110 above). The group appears to have been the principal militia of the “DPR”. It was active from the earliest stages of the conflict around Donetsk, Horlivka and Yenakiyeve.

134 . As the conflict continued and escalated, three further armed groups emerged in Donetsk:

(i) The “Oplot Battalion”, led by Mr Zakharchenko (see paragraph 131 above), was active in and around Donetsk from about April 2014.

(ii) The “Russian Orthodox Army”, headed by Mr Pimenov (see paragraph 121 above), was based in the SBU building in Donetsk.

(iii) The “Vostok Battalion”, led by Mr Khodakovsky (see paragraph 111 above), emerged in May 2014 and its members included Chechens and Ossetians.

135 . In Slovyansk, a group of armed separatists led by Mr Girkin (see paragraphs 52 and 108 above) appeared on 12 April 2014 and took over the command of the militias there. The group, sometimes described as “the Crimea group”, “Strelkov’s Group” or “the 1st Sloviansk Brigade”, came directly from Crimea (see Ukraine v. Russia (re Crimea) , cited above, § 33), and was joined by local separatists in Slovyansk. It included Mr Bezler, Mr Pavlov and Mr Dubinskiy (see paragraphs 103, 120 and 107 above).

136. From Slovyansk, Mr Bezler went on to command a group of separatists in nearby Horlivka. The group was known as “Bezler’s Group” or “Berkut”. Other high-profile armed groups appear to have operated under the leadership of the “DPR”, at different times answering directly to different “commanders”. They included the “Sparta Battalion”, led by Mr Pavlov (see paragraph 120 above), and the “Somalia battalion” led by Mr Tolstykh (see paragraph 129 above).

137. In the Luhansk region, the area was, from the outset, largely divided between two main groups: the “South-East Army” and the Cossacks.

(i) The “South-East Army” (or “Army of the South-East”), headed by Mr Bolotov (see paragraphs 60 and 104 above), emerged in March 2014 and was active throughout the Luhansk region. It was the militia of the “LPR”.

(ii) The Cossack faction (known as the “All-Great Don Army” or “Cossack National Guard”), headed by Mr Kozitsyn (see paragraph 114 above), controlled south-western areas of the Luhansk region, in and around Antratsyt and Perevalsk. A breakaway Cossack group led by Mr Dryomov (see paragraph 106 above) subsequently emerged, principally based around Stakhanov.

138. Mr Mozgovoy (see paragraph 117 above) created the “People’s Militia of Lugansk Region” in Luhansk in April 2014. The group left Luhansk following a conflict with the “South-East Army”. It was active in and around Alchevsk. At some point, it became the “Prizrak Battalion”.

139 . Other armed groups operated under the overall leadership of the “South ‑ East Army” and the “LPR”. They included the “People’s Liberation Battalion Zarya”, which was created in May 2014 under the command of Mr Plotnitsky (see paragraphs 60 and 122 above), and the Rapid Response Group “Batman”, formed by Mr Bednov (see paragraph 102 above) in April 2014.

140. An outline of the initial political structures in the “DPR” and the “LPR” together with the principal office-holders up until the date of the hearing on admissibility is set out below. There is, in particular, a great deal of information available about the “DPR” and its composition in the summer of 2014 in light of the independent investigations conducted following the downing of flight MH17.

(a) Before the May 2014 “referendum”

141. In early March 2014, Mr Gubarev (see paragraph 110 above) declared himself “People’s Governor” of the Donetsk region. He subsequently stormed the Regional State Administration building with other separatists, although the Ukrainian authorities soon recovered control. He was arrested shortly afterwards.

142. Mr Pushilin (see paragraph 126 above) took over the leadership of the separatist movement in the Donetsk region after Mr Gubarev’s arrest, calling himself the deputy to the “People’s Governor”. He was part of the group of separatists who took over the Donetsk Regional State Administration building on 7 April 2014 and declared the “DPR” (see paragraph 51 above). Mr Pushilin became a “Co-Chairman” of the “interim government” and worked on preparing the 11 May 2014 “referendum” on independence.

143. On 14 April 2014, Mr Ponomaryov (see paragraph 123 above) declared himself “People’s Mayor” of Slovyansk.

(b) The May 2014 “government”

144 . On 15 May 2014, Mr Pushilin became Chairman of the Supreme Council of the “DPR”, at that time the highest position in the “DPR” under its “constitution”. He held that position until he resigned on 18 July 2014.

145 . On 16 May 2014, the Supreme Council elected the new “government” of the “DPR”. The following posts were announced:

(i) Mr Borodai (see paragraph 105 above): “Prime Minister”.

(ii) Mr Girkin (see paragraph 108 above): “Minister of Defence”. As “Minister of Defence”, he became commander-in-chief of the “DPR” and took command of all separatist forces operating there.

(iii) Mr Purgin (see paragraph 125 above): “First Deputy Prime Minister”.

(iv) Mr Kovalchuk (see paragraph 113 above): “Minister of Internal Affairs”.

(v) Mr Khodakovsky (see paragraphs 111 and 134 above): “Minister for State Security”.

(vi) Mr Zakharchenko (see paragraphs 131 and 134 above): military commandant of Donetsk.

(vii) Mr Dubinskiy (see paragraphs 107 and 135 above): head of the military intelligence service of the “DPR”.

(viii) Mr Pulatov (see paragraph 124 above): deputy head of the “DPR” intelligence service under Mr Dubinskiy.

146. A “Council for Security and Defense” of the “DPR” was established. Its membership included Mr Girkin, Mr Khodakovsky and Mr Kovalchuk.

(c) Subsequent changes to the “government”

147. In July 2014, Mr Antyufeyev (see paragraph 100 above) was named “First Deputy Prime Minister” in charge of law enforcement agencies. He was given responsibility for the “Ministry of Internal Affairs” and the “Ministry of State Security”.

148. Mr Borodai resigned as “Prime Minister” on 7 August 2014. Mr Girkin stepped down from his role as “Minister of Defence” on 12 August 2014. Both men returned to Moscow, although Mr Borodai continued as “Deputy Prime Minister” of the “DPR” until October 2014.

149 . On 7 August 2014, Mr Zakharchenko was named “Prime Minister”. Mr Kononov (see paragraph 112 above) subsequently replaced Mr Girkin as “Minister of Defence” of the “DPR”.

(d) After the first “elections” in November 2014

150. In November 2014, “elections” for the “People’s Council”, the successor to the Supreme Council, and “Head of State” were held in the “DPR”.

151. Following the “elections”, Mr Zakharchenko (see paragraph 131 above) assumed the post of “Head of State”.

152. One hundred deputies were “elected” to the People’s Council for a term of four years. During its session on 14 November 2014, it elected Mr Purgin (see paragraph 125 above) as “Prime Minister”. Mr Pushilin (see paragraph 126 above) became “Deputy Prime Minister”. From November 2014 to September 2018, Mr Pushilin also acted as the Permanent Plenipotentiary Representative of the “DPR” at the Trilateral Contact Group talks in Minsk, Belarus.

153 . On 11 September 2015, following Mr Purgin’s removal as Prime Minister, Mr Pushilin became “Prime Minister”.

154. On 7 September 2018, following Mr Zakharchenko’s death (see paragraph 131 above), the People’s Council appointed Mr Pushilin acting “Head of State” pending “elections” scheduled for November 2018. He in turn appointed Mr Ananchenko (see paragraph 99 above) “Prime Minister” of the “DPR”.

155. In November 2018, Mr Pushilin became “Head of State”.

(a) Before the May 2014 “referendum”

156. On 21 April 2014, Mr Nikitin (see paragraph 118 above) became chairman of the “Praesidium” of the “People’s Assembly of the Lugansk Region”.

157. On 27 April 2014, Mr Bolotov (see paragraph 104 above) became “People’s Governor” of the Luhansk region.

(b) The May 2014 “government”

158 . After the “referendum” of 11 May 2014, the following “LPR” government posts were announced:

(i) Mr Bolotov: “President”.

(ii) Mr Nikitin: “Prime Minister”.

(iii) Mr Plotnitsky (see paragraph 122 above): “Minister of Defence”.

(c) Subsequent changes to the “government”

159. On around 3 July 2014, Mr Bolotov appointed the “LPR Council of Ministers”, including Mr Bashirov (see paragraph 101 above) as its acting “Chairman” and thus “Prime Minister”, to replace Mr Nikitin. Mr Semenov (see paragraph 127 above) and Mr Nikitin were appointed “First Deputy Chairmen” of the “LPR Council of Ministers”.

160. On around 14 August 2014, Mr Bolotov resigned as “President” and Mr Plotnitsky became “President” of the “LPR”.

161. Mr Bashirov resigned as “Prime Minister” on around 20 August 2014 and Mr Plotnitsky took on his functions until he appointed Mr Tsyplakov (see paragraph 130 above) to the post on around 26 August 2014.

162 . Mr Pasechnik (see paragraph 119 above) served as “Minister of State Security” of the “LPR” from around 9 October 2014.

(d) After the first “elections” in November 2014

163. In November 2014, “elections” were held in the “LPR” for the post of “President” and for the “People’s Council”.

164. Following the “elections”, Mr Plotnitsky continued as “President” of the “LPR”. The occupants of other principal “government” posts also remained in place.

165. On 26 December 2015, Mr Tsyplakov was dismissed as “Prime Minister” and Mr Kozlov (see paragraph 115 above) was appointed.

166. Mr Plotnitsky resigned as “President” in November 2017. Mr Pasechnik (see paragraph 119 above) became the acting head of the “LPR”. He became “President” following “elections” in November 2018.

167. The relevant events as advanced by the parties in their memorials (see paragraphs 19, 23 and 26 above) and at the hearing (see paragraph 33 above) are set out below. The submissions were made before the start of the armed attack on Ukraine by the Russian Federation on 24 February 2022 (see paragraph 90 above).

(a) Political background

168 . Since the dissolution of the USSR, the Russian Federation has pursued a political strategy of seeking to maintain economic and political influence over the former Soviet republics. One aspect of this policy has been to disrupt efforts at closer integration between former Soviet States and western political allies, such as the EU and NATO. In addition to the use or threat of force and the exertion of economic influence, one way of pursuing this strategy has been through the promotion of the Eurasian Customs Union (“EACU”).

169. The election of Mr Yanukovych as President of Ukraine in 2010 was perceived in Moscow as an opportunity to achieve greater control over Ukraine’s affairs. Under Moscow’s influence, Mr Yanukovych distanced Ukraine from plans for NATO integration. However, his administration was unable to ignore a strong tide of popular opinion in favour of closer economic integration with the EU and reluctantly entered negotiations for an EU ‑ Ukraine Association Agreement.

170. In November 2013, shortly before the agreement was due to be signed, Mr Yanukovych yielded to pressure from the Kremlin to abandon the process and announced instead an intention to begin talks for accession to the EACU. However, the government’s decision sparked an uprising which quickly spread. Popular protests began in Kyiv, with people taking to the streets in ever-increasing numbers in an effort to influence government policy. These street protests came to be known as “Euromaidan”.

171. On the night of 21 February 2014, President Yanukovych, accompanied by a Russian military escort, left Kyiv. He first went to Kharkiv and then to Moscow, where he sought political asylum. The next day, the Ukrainian Parliament voted by a majority to remove him from office. On 4 March 2014, the Permanent Representative of the Russian Federation to the United Nations produced a letter, dated 1 March 2014, from Mr Yanukovych which called for Russian military intervention in Ukraine in order to “restore law and order”.

(b) The start of the unrest

172. At the outbreak of hostilities in 2014, the population of the Donetsk and Luhansk regions was ethnically mixed. Ethnic Russians were present in significantly higher numbers than in other regions of Ukraine. Most people in the regions spoke Ukrainian and Russian, although Russian was the native language for the majority. As part of its policy of influencing Ukraine, the Russian Federation had for many years fostered pro-Russian political groupings that pursued a broadly separatist agenda in these regions. Their aim was to weaken ties between Kyiv and the border regions and thereby facilitate influence over Ukrainian territory adjacent to the border. The Russian President, Vladimir Putin, set about a policy that was designed to change international borders between Ukraine and the Russian Federation.

173. Russian media portrayed the Euromaidan protests as an existential threat to the ethnic Russian minorities living in Ukraine. In a deliberate attempt to stir up historical enmities, the Russian media sought to portray the Euromaidan movement as pro-Nazi and suggested that there was a real risk of genocide against ethnic Russian people. A counter movement calling itself the “Antimaidan” was formed and attracted support from Russian-speaking Ukrainians. It was also supported by Russian citizens who travelled to Ukraine to foment the unrest.

174. On 26 January 2014, a political conference was held in Donetsk to launch the so-called “Russian Spring” movement. It was sponsored by the National Liberation Movement, a pro-Russian political grouping led by Yevhen Fedorov, a member of the Russian Duma. It resulted in the establishment of the “Donbass People’s Militia”, an illegal paramilitary formation.

175. Organised protests became more frequent during February 2014 and it became increasingly clear that Russia was instigating, organising and financing the protests in cities in eastern Ukraine with significant Russian ‑ speaking populations. The “maximal” objective was the complete destabilisation of ten southern and eastern Ukrainian regions, through “hybrid warfare” by the FSB. The fallback “minimal” objective was the intensive targeting of at least five priority regions. The most pressing strategic priority of the Russian Federation was to establish effective control over the eastern part of the Donetsk region and part of the Zaporizhzhia region in order to secure a land corridor between mainland Russia and the Crimean peninsula. Local pro-Russian activists were reinforced by trained militants from Russia. The Russian authorities organised regular transports of people from Russia to eastern Ukraine.

176. The first orchestrated mass action took place on 1 March 2014 when civil unrest began simultaneously in the cities of Kharkiv, Donetsk, Dnipropetrovsk and Odessa, as well as across a number of other regions in eastern Ukraine. These were systematically organised by “pro-Russian elements”. It was in this context that the first attempts were made to take control of local government and administrative buildings in the Donetsk and Luhansk regions. Armed and organised “pro-Russian elements” “occupied” these buildings and replaced local symbols with Russian flags.

177. From 2 to 15 March 2014, a series of public “actions” were synchronised by pro-Russian elements. The most intense series of “actions” was focused on the Donetsk region, which witnessed the arrival of numerous “tourists” from Russia.

178. On 14 March 2014, a group of armed fighters, including Mr Pavlov, a Russian national with military experience in the Russian armed forces who was close to Mr Girkin, attacked the premises of pro-Ukrainian organisations in Kharkiv. Given Mr Pavlov’s background, connections and very early involvement, he was another instrument of Moscow’s strategy for exercising effective control over the separatist militias. His operating expenses were known to have been facilitated by ultra-nationalist Russian politician Vladimir Zhirinovsky. Funding was provided by Kremlin backers, including Mr Malofeyev and Mr Glazyev.

179. On 16 March 2014, the day of the Crimea “referendum”, pro-Russian elements staged a series of coordinated and simultaneous “mass actions” in the Donetsk and Luhansk regions, ostensibly in “solidarity” with the events taking place in Crimea. Marches and demonstrations were also held in other cities in eastern and southern Ukraine. By this time, the infiltration of armed Russian militants was becoming clearly visible throughout the regions targeted by the Russian Federation.

(c) The build-up of Russian troops along the border

180. Meanwhile, the Russian Federation was deploying a substantial military force on Ukraine’s border. By 9 March 2014, there were more than 26,000 combat-ready Russian military personnel stationed close to Ukraine’s eastern border. On 13 March 2014, the Russian Ministry of Defence announced that these units would begin training manoeuvres close to the border.

181. Within a month, a further 14,000 Russian troops had been deployed to the border region in a show of force intended to embolden Russia’s proxies in eastern Ukraine and further instigate unrest. On 10 April 2014, the Secretary General of NATO issued a statement in which he underlined that, according to satellite images, 40,000 combat-ready Russian troops were massed along Ukraine’s borders. According to him, Russia was stirring up ethnic tensions in eastern Ukraine and provoking unrest.

(d) From civil unrest to paramilitary action

182. Following the outbreak of hostilities, a pattern of abduction, torture and summary execution of pro-Ukrainian civilians became well-entrenched, accompanied by indiscriminate military attacks on civilian targets, protected objects and members of the Ukrainian military who were prisoners of war or otherwise hors de combat , in flagrant violation of the applicable rules of international humanitarian law. These incidents were documented by monitors of the Office of the UN High Commissioner for Human Rights (OHCHR) and the OSCE and were part of a continuing pattern. They are constituent elements of the administrative practices alleged.

183. In March and April 2014, the illegal armed groups started to occupy public and administrative buildings in the Donetsk and Luhansk regions. On 7 April 2014, local armed groups, supported by Russian special forces and Cossack paramilitaries, took control of the Donetsk Regional State Administration building, declared independence from Ukraine and announced the establishment of the “DPR”. Their leader, Mr Gubarev, was installed as “People’s Governor” and they announced that an independence referendum would be held in Donetsk on 11 May 2014. The ideological foundation for these protests emanated from Moscow and was based on the historical notion of “Novorossiya” (or New Russia). “Novorossiya” relates to a region of the Russian Empire corresponding to modern Ukrainian territory north of the Black Sea. In the past, it was formed as a new imperial province of the Russian Empire (Novorossiya Governorate) expanded by the annexation of new territories from the Ottoman Empire in the 18th century. This neo ‑ imperialist concept of Russian territorial expansion was actively encouraged by President Putin.

184. However, as it became clear that these “sponsored” protests had failed to trigger a general uprising against the government in Ukraine, the Russian Federation began supplying military personnel and equipment in ever-increasing volumes. Mr Girkin and Mr Borodai were sent to eastern Ukraine to take effective control of the movement on behalf of the Kremlin administration. Soon after they arrived, Russia began a steady supply of weapons to loosely affiliated groups of pro-Russian paramilitaries whose leadership had close and enduring ties to the Russian security authorities and special services. Training in the border camps was carried out by the Russian army while the FSB was tasked with recruitment and the operation of the training camps. The recruitment of fighters from Russia was typically organised through a number of publicly available websites that were clearly permitted to operate openly with the consent and acquiescence of the authorities in Moscow. “Volunteers” were also registered at military enlistment offices in various Russian cities where they would receive instructions to travel to one of the border camps, mostly in the area of Rostov ‑ on-Don. Many were former police or military officers. These “volunteers” were paid for their services from Russian State funds.

185. Armed engagement began on 12 April 2014 when Russian special forces, acting under the guise of local separatists, took control of Slovyansk, Kramatorsk and Druzhkivka. A group of masked armed men under the command of Mr Girkin took control of public buildings in Slovyansk and appointed Ukrainian national Mr Ponomaryov, a former member of the Russian army, as “People’s Mayor”. He immediately issued a call for support to his former military colleagues in the Russian armed forces.

186. Over the following two weeks, municipal buildings in eastern Ukraine were seized by armed gangs amid sporadic armed skirmishes. After a number of failed attempts, the administrative offices of Luhansk were seized on 27 April 2014 and the “LPR” was established, under “People’s Governor” Mr Bolotov.

187. Between 2 and 5 May 2014, intense fighting occurred in the areas around Slovyansk and Kramatorsk. Pro-Russian forces shot down three Ukrainian military helicopters using anti-aircraft weapons supplied by the Russian Federation. Intense fighting spread to Mariupol between 3 and 10 May 2014, resulting in significant casualties and serious damage to public property. By this time, the conflict was escalating on a daily basis.

188. On 7 May 2014, Chechnya’s President, Ramzan Kadyrov, pledged to send “tens of thousands of Chechen volunteers to southern and eastern Ukraine”. Recruitment centres were set up across Chechnya. Chechen paramilitaries were observed in Slovyansk from early May 2014. Such an arrangement for mutual military assistance between the Russian authorities in Grozny and Moscow would have required the approval of both President Kadyrov and President Putin.

189. Operating together with other Cossack formations, the Cossack National Guard is estimated to have deployed more than 4,000 fighters with access to heavy armour and artillery from the Russian Federation. The group, based in Antratsyt, has been identified by the US State Department as an organisation established by Russian special forces.

190. On 11 May 2014, the “DPR” and the “LPR” held “independence referendums” that were largely boycotted by Ukrainians and condemned as unlawful and undemocratic by the international community. Nonetheless, the Ministry of Foreign Affairs of the Russian Federation published an official statement on its website, on 12 May 2014, in which it expressed Russia’s “respect” for the results. A number of irregularities and acts of intimidation were reported, particularly against independent journalists. Ukrainian journalists were not allowed to photograph or film the voting process. According to the separatists there was a high turnout among ethnic Russians resulting in a 90% vote in favour of independence from Ukraine.

191. According to the OHCHR, the violence and repression of the armed groups intensified following the “referendums”. In the immediate aftermath of the “referendums”, the report of the OSCE’s Special Monitoring Mission (“SMM”) for 15 May 2014 described the situation on the ground in Donetsk and Luhansk as volatile, with armed groups exercising control of large swathes of territory.

192. On 15 May 2014, Mr Borodai assumed the title of “Prime Minister” of the “DPR” and appointed Mr Girkin as “Defence Minister”. Mr Bolotov was named “President” of the “LPR”. On the same day, the “Donetsk People’s Militia” sent an ultimatum to Kyiv, ordering the withdrawal of all Ukrainian troops from the Donetsk region.

193. Throughout May 2014, the “DPR” and “LPR” forces mounted sustained military operations against government border checkpoints in an effort to gain control of sections of the international border between Russian and Ukraine. The purpose of these operations was to facilitate the free flow of weapons, ammunition and military personnel from the Russian Federation to areas under separatist control.

194. From the outset, Mr Borodai and Mr Girkin publicly called for armed Russian intervention in eastern Ukraine. Almost immediately, their appeals resulted in a steady stream of Russian fighters and weaponry, including rocket ‑ propelled grenades and tanks, that flowed into Ukraine across its eastern border. According to Mr Borodai, around 50,000 Russian nationals fought in the pro-Russian armed groups in eastern Ukraine during the first two years of the conflict. Mr Girkin claimed in the media that one third of the fighters in his unit were Russian combat veterans. The actual figure of Russian-backed forces operating inside Ukraine was probably much higher.

195. On 20 May 2014, the SMM noted the presence of armed members of the Berkut, the special forces loyal to former President Yanukovych, carrying Russian military issue automatic weapons in Luhansk.

196. On 22 May 2014, Mr Bolotov declared “martial law” in the “LPR”.

197. On 25 May 2014, Ukraine held nationwide Presidential elections. They were boycotted by armed groups in eastern Ukraine. According to the OHCHR, they were disrupted by acts of intimidation, voter suppression, the abduction of election officials and political corruption. Independent journalists were harassed by separatist militias and prevented from recording the preparations for and the conduct of the Presidential elections prior to and during election day. There were numerous official reports of electoral officials and employees being threatened, detained and even tortured by armed groups in the “DPR” and the “LPR”.

198. On 26 May 2014, fierce fighting broke out for control of Donetsk airport. The majority of those killed or injured were Russian nationals.

199. On 29 May 2014, the “Vostok Battalion”, headed by Russian army veteran Mr Khodakovsky, arrived in Donetsk and pledged allegiance to Mr Girkin. International analysts consider it to be a private army with direct links to Russian intelligence. Its members include former members of GRU special forces who fought with Russian troops in the Chechen and Georgia wars.

200. From the end of May 2014, forces from a private military contractor, the Wagner Group, began to arrive. The Wagner Group is controlled by Evgeniy Prigozhin, a close associate of President Putin. Other professional mercenaries operating in Donetsk and Luhansk included ENOT Corp, a private military company registered in Moscow, and MAR, a company registered in St Petersburg.

201. By the end of May, the OSCE was reporting intense fighting on a daily basis. On 30 May 2014, it reported that the “Vostok Battalion” had taken over control of the central administration building in Donetsk, ousting local “DPR” armed separatists.

202. By that point, significant parts of the almost 1,000 kilometre border between the Donetsk and Luhansk regions and the Russian Federation were under separatist control. On 1 June 2014, the border garrison of Luhansk was overrun. Further checkpoints along the Luhansk section of the border fell to the separatists over the next few days. A similar pattern occurred at various points along the Donetsk section of the border.

203. Hostilities intensified during the early part of June 2014, typically involving the exchange of fire between government forces and separatists armed with small arms, grenade launchers, mortars and MANPADS (portable air defence systems). There were multiple separatist attacks on government border points to keep open the supply routes for weapons from the Russian Federation.

204. On 10 June 2014, Mr Antyufeyev, a Russian national with a strong background in national security, was appointed “Deputy Prime Minister” of the “DPR”. With his appointment, Moscow had taken decisive and direct control of both the political and military leadership of the separatist militias. The close working relationship between the separatists and the Kremlin was acknowledged by Mr Borodai in a press conference on 16 June 2014.

205. On 12 June 2014, the Russian military authorities began the transfer of heavy armoured vehicles, artillery, tanks and Grad rockets systems across the border into Ukraine. A column of Russian tanks was delivered to Snizhne in the Donetsk region and a column of multiple-launch Grad BM-21 rocket launchers was transferred through Luhansk.

206. On 14 June 2014, armed separatists shot down a Ukrainian military transport plane as it approached Luhansk airport, killing forty soldiers and nine crew. This attack was a direct and immediate result of the transfer across the border of Russian Grad BM-21 rocket launchers two days earlier. At a press conference the next day, Mr Bolotov claimed that the “South Eastern Army” had shot down the plane. At the same time, he appealed for further “volunteers” with military experience of handling mortars, heavy machine guns and armoured personnel carriers (“APCs”) to join the “South Eastern Army”.

207. Meanwhile, between 12 and 20 June 2014, Ukrainian forces took steps to recapture parts of the border area in an effort to control the flood of weapons entering Ukraine from the Russian Federation. Intense fighting centred on the areas around Slovyansk and Semyonovka. However, the Ukrainian military operation was interrupted on 20 June 2014 by a ten-day unilateral ceasefire announced by the Ukrainian president. That same day, the SMM recorded another military convoy of tanks and armoured vehicles entering Luhansk from the direction of the Russian border.

208. On 21 June 2014, emboldened by the continuing influx of Russian weapons and personnel, the “DPR” told the SMM that it rejected the terms of a proposed mutual ceasefire and insisted instead on the complete withdrawal of Ukrainian forces and recognition of the independence of the “DPR”. A similar position was taken by the “LPR”.

209. According to the OHCHR and the SMM, during the unilateral ceasefire period, pro-Russian forces carried out 108 armed attacks on Ukrainian positions killing 27 members of the Ukrainian armed forces and injuring a further 69. At least nine civilians were killed by separatists during this time and a significant number of Ukrainian military personnel were taken prisoner.

210. Ukraine relaunched military engagements at the end of June 2014 with the objective of recapturing a fifteen kilometre stretch of the border. By this time, however, they were facing an increasingly well-equipped military force of Russian “volunteers” and mercenaries with a huge arsenal of highly destructive Russian military hardware.

211. On 5 July 2014, Ukrainian forces regained control of Slovyansk, Kramatorsk, Dryzkivka and Kostyantynivka. This marked the start of a reversal of fortunes for the Ukrainian forces.

212. On 10 and 11 July 2014, fighting intensified in and around Donetsk airport with access roads blocked by the “DPR” forces.

213. On 11 July 2014, as a result of Ukraine’s operation to re-take control of sections of the international border, Russian conventional forces engaged directly for the first time, shelling Ukrainian positions near the border town of Zenelopillya with Grad BM-21 rocket launchers from inside the territory of the Russian Federation. The local paramilitaries used the Russian artillery barrage as cover in their attempt to re-take the border position. The Russian cross-border artillery attacks continued with air support from Russian military aircraft.

214. In its report of 15 July 2014, the OHCHR concluded that the rule of law had “collapsed” in the areas under the control of the “DPR” and “LPR”. The local police were under the de facto control of the armed groups and did not investigate crimes that were perpetrated by the militias. Public buildings associated with law enforcement agencies were “occupied and often used to detain and torture civic activists, journalists and political opponents”. Law enforcement by official government agencies had become “a dead letter in territories controlled by the armed groups”.

215. Mr Zakharchenko was personally responsible for a large number of abductions and kidnappings. Mr Tolstykh was seen in footage broadcast in January 2015 abusing captured service personnel by cutting military insignia off their uniforms and forcing them to eat them. Mr Pavlov has also admitted the torture and summary execution of Ukrainian prisoners of war.

216. Between 17 and 20 July 2014, intense fighting was continuing in Luhansk. The SMM recorded that Ukrainian forces had re-taken Rubezhnoe in the northern Luhansk region on 20 July 2014 and overrun nearby Severodonetsk on 21 July. The SMM also recorded evidence that these irregular forces had been detaining people in the SBU building in Severodonetsk. A number of the detainees had been summarily executed and their bodies were discovered inside the building. Two survivors informed the SMM that they had been held captive in the building for ten days without food, during which time they had been beaten.

217. The witness statement of Lieutenant Colonel Kolenynyk, of the Ukrainian armed forces explains his role in border operations over the summer of 2014. He refers to shelling by Russian forces from the territory of the Russian Federation of his unit’s position near Marynivka from early July. He states that between 15 and 16 July 2014, his unit’s border position was subjected to an uninterrupted artillery barrage for nineteen hours while local paramilitaries used the Russian artillery barrage as cover in their attempt to re-take the border position.

218. On 17 July 2014, the “DPR” forces shot down flight MH17, a civilian aircraft flying in civilian airspace over eastern Ukraine, using a 9M38 series missile with a 9N314M warhead launched from a Buk-TELAR that had been delivered by members of a Russian military brigade to “DPR” ‑ controlled territory in Ukraine. The flight came down in Hrabove. All 298 civilians on board were killed. The launch site was later identified by missile trajectory analysis and satellite imagery analysis as a field near Snizhne, in an area under the control of “DPR” forces. Using open-source research technology, investigators were able to trace the route taken by the Buk-TELAR from Russia to the launch site. The evidence shows that between 23 and 25 June 2014, a convoy of the “53rd RAF Brigade” transported several military systems, including six Buk-TELARs, through western Russia from Kursk to the Millerovo military airbase in the Rostov region. The Buk ‑ TELAR was transported across the border to Ukraine in the morning of 17 July 2014 and travelled from Luhansk to Donetsk then onwards to Snizhne where it was offloaded and driven to the launch site. Shortly thereafter, it deployed the missile which shot down flight MH17. After the attack, the Buk was returned to the Russian Federation. An image of the return journey shows the Buk missing one missile.

219. On 21 July 2014, the UN Security Council adopted Resolution 2166 (2014) condemning the downing of MH17 “in the strongest possible terms” and expressing its “grave concern” that the “DPR” forces were obstructing access to the crash site and impeding international investigators.

220. Over the following weeks, Russia intensified the supply of heavy weaponry and personnel across the border. Its conventional forces also mounted a series of covert special operations, crossing into Ukraine with their official military insignia concealed in an effort to blend in with the paramilitaries. The aim was to bolster the armed groups in their efforts to control and reverse the continuing advance of the Ukrainian military. Russian conventional forces also conducted frequent cross-border artillery attacks on Ukrainian troops from firing positions on the Russian side of the border.

221. On 7 August 2014, in anticipation of the Minsk dialogue, Mr Borodai stepped down as “Prime Minister” of the “DPR” in order to make way for Mr Zakharchenko, the commander of the locally based “Oplot” battalion. The reason for this purely nominal change of leadership was that Mr Zakharchenko was Ukrainian and so was thought to present the international community with a more acceptable face of the separatist leadership than Mr Borodai. This transfer of power was an attempt to create the impression that the separatist political leadership in eastern Ukraine was home-grown, so as to disguise Moscow’s overarching control of the situation during the planned Minsk talks. However, Mr Borodai retained effective influence over the movement on behalf of his “master in [the] Kremlin” by taking the role of “Deputy Prime Minister”. The Kremlin administration also issued instructions for Mr Girkin to step down from his role as “Defence Minister”. These developments, instigated by the Russian government directly, provide further confirmation of Russian State control over the leadership of the paramilitary groups and their “executive authorities”.

222. On 12 August 2014, a fierce battle for control of Ilovaisk began and lasted for more than a week. Ukrainian forces made substantial gains. On 20 August they announced that they had re-taken the town. Perceiving that the “DPR” forces were being overrun, the Russian armed forces took the decision to mount a full-scale land invasion into eastern Ukraine. A large contingent of regular Russian soldiers crossed the border in early August 2014 and engaged in direct combat operations against Ukrainian armed forces.

223. On 14 August 2014, a further convoy of 23 Russian APCs was observed crossing the border, supported by fuel trucks and other logistics vehicles with official Russian military plates. On 24 August 2014, a contingent of more than 3,500 Russian forces crossed the border into the Starobeshevsky district of Donetsk and advanced towards Ilovaisk. The invasion force included 400 paratroopers from the Guards Parachute Regiment, 98th Airborne Division. The force was equipped with 60 tanks, 320 armoured vehicles, 60 pieces of artillery equipment and 45 mortars. Identification marks on the Russian military vehicles used in the operation were either obscured or painted over.

224. On 14 August 2014, Mr Bolotov resigned from his position and Mr Plotnitsky became the “President” of the “LPR”.

225. On 24 August 2014, Ukrainian forces captured a number of Russian soldiers including ten members of the 331st Guards Airborne Regiment, one member of the 8th Guards Mountain Motor Rifle Brigade and two members of the 6th Tank Brigade.

226. Over the following days, intense fighting continued in the area. The Ukrainian forces in Ilovaisk began planning for a ceasefire and a managed withdrawal. Negotiations for the Ukrainian retreat began on 27 August 2014 between Ukrainian military commanders and the Command of the General Staff of the Russian armed forces. The proposal was for a humanitarian corridor for the withdrawal to take place. Russian forces took up positions along the planned route. On 28 August 2014, agreement was reached with the Russian General Staff for the withdrawal to begin at dawn the following day.

227. On 29 August 2014 at around 5 a.m., Ukrainian forces began the withdrawal operation. However, despite the fact that they were hors de combat and in retreat, the Russian forces opened fire on them, killing 366 men and seriously injuring a further 429 men. Approximately 300 men were taken prisoner, many by regular army units but they were then handed into the custody of “DPR” paramilitary formations who subjected them to torture and inhuman and degrading treatment.

228. Russian troops invaded deep into Ukrainian territory, taking up positions in a series of towns several kilometres from the border. There they conducted direct military engagements with Ukrainian forces. Meanwhile, Russian forces inside Ukraine began an offensive against the Ukrainian forces in the Luhansk region with the objective of reversing their territorial gains. The Russian military objective was to break the encirclement of Luhansk by Ukrainian forces. Ukrainian forces eventually withdrew after coming under direct military attack from Russian tanks and artillery on Ukrainian territory. Substantial forces of the Russian army engaged in this operation and intense fighting around Luhansk continued until 5 September 2014.

229. Many of the various irregular formations with numerous Russian nationals among their ranks, were subsumed into the 1st Army Corps (the armed groups of the “DPR”) or the 2nd Army Corps (the armed groups of the “LPR”). All of the pro-Russian military formations operating in the Donetsk and Luhansk regions had a significant military, economic and/or political connection to the Russian Federation. In addition, enlisted members of the Russian armed forces entered Ukraine covertly posing as volunteers, mercenaries or tourists.

230. On 28 August 2014, as the Minsk talks were approaching, NATO released a statement accompanied by satellite images that confirmed the invasion by Russian troops and the movement of large quantities of advanced weaponry (including air defence systems, artillery, tanks and armoured personnel carriers) from Russia into eastern Ukraine.

231. Given the scale and gravity of the war crimes and human rights violations committed during the August events in the area around Ilovaisk, the OHCHR set up a specific investigation and later published a detailed report. It recorded evidence of a number of war crimes by Russian forces and their paramilitary proxies after the Ukrainian forces had confirmed their withdrawal. These included armed attacks on wounded personnel who were hors de combat , treacherous killing of retreating formations in violation of agreed withdrawal arrangements, and the torture and murder of prisoners of war.

232. On 1 September 2014, the Trilateral Contact Group, comprised of senior representatives of Ukraine, the Russian Federation and the OSCE, met in Minsk with representatives of the “DPR” and “LPR”. The discussions focused on the establishment of an inclusive process for political dialogue, a sustainable ceasefire, restoration of border control, humanitarian assistance and reconstruction in the areas affected by the conflict, and the release of prisoners of war.

233. On 5 September 2014, the Minsk Protocol was signed by representatives of the Trilateral Contact Group and, without any official recognition of their status, by the then leaders of the “DPR” and “LPR”. It made provision for an immediate ceasefire, an exchange of prisoners and the establishment of effective border control, all to be monitored by the OSCE. At 6 p.m. that day, the ceasefire came into effect. At that point, Russian forces were deployed in various locations across the Donetsk and Luhansk regions and along the international border. The forces of the “DPR” and the “LPR” controlled significant parts of the territory in Donbass (six districts in the Donetsk region and five districts in the Luhansk region).

234. On 10 September 2014, the President of Ukraine announced that approximately 70% of Russian troops had withdrawn from Ukrainian territory. However, the armed groups almost immediately began a campaign of military engagements in violation of the ceasefire. As a result, on 19 September 2014 the parties signed a Memorandum “outlining the parameters for the implementation of the commitments of the Minsk Protocol of 5 September 2014”. This agreement established a ceasefire boundary line between opposing armed forces and required the withdrawal of all military personnel and equipment to a distance of fifteen kilometres on either side of the boundary line. It also required the complete withdrawal of all foreign armed formations from the territory of Ukraine and prohibited any form of offensive military action by any of the parties to the conflict. Compliance with these commitments on the ground was to be monitored by the OSCE SMM.

235. In a statement issued on 20 September 2014, NATO’s Supreme Allied Commander, General Breedlove, described the result of the Minsk agreement as a “ceasefire in name only”. He noted that by continuing to enable the “free flow of weapons and fighters across the border”, the Russian Federation had made it “nearly impossible for outsiders to determine how many of its troops are operating inside Ukraine”.

236. On 2 November 2014, “elections” were held in the “DPR” and “LPR” in violation of Ukrainian law and the Minsk Protocol. Mr Zakharchenko and Mr Plotnitsky won the “elections”. The next day, the Russian Ministry of Foreign Affairs pledged to “respect the will of the people”.

237. OSCE monitors reported on 8 November 2014 that they had observed large-scale movements of unmarked heavy equipment in separatist ‑ held territory, including APCs, lorries, petrol tankers and tanks, which were being manned and escorted by soldiers in dark green uniforms without insignias. On 12 November 2014, General Breedlove announced that NATO could confirm that Russian troops and heavy equipment had crossed into Ukraine during the preceding two days.

238. It its report published on 15 November 2014, the OHCHR documented “almost daily” breaches of the 5 September ceasefire agreement by the separatist militias at various “flashpoints”. These included Donetsk airport and the surrounding north-west suburbs of the city; the areas under government control intersecting the main road and rail links between Donetsk and Luhansk; and the area around Smile, Luhansk region. The OHCHR recorded more than 2,000 instances of shelling and armed attacks by separatist militias on Ukrainian government positions between 5 September and 15 November, although the frequency and intensity of these attacks reportedly decreased.

239. The OHCHR’s report of 15 December 2014 highlighted the breakdown of law and order in the conflict zone which had resulted in the killings, abductions, torture, ill-treatment, sexual violence, forced labour, ransom demands and extortion of money by the armed groups reported during the whole conflict period. It also noted that persecution and intimidation of people suspected of supporting Ukrainian forces or merely holding pro ‑ Ukrainian sympathies (or perceived as such) remained widespread and included deprivation of liberty and property, humiliation in public places and mock executions.

240. In January 2015, the Minsk ceasefire broke down completely. During the second half of January 2015, “DPR” forces with Russian military support mounted a sustained attack on Donetsk airport in order to retake it. The “DPR” forces included the “Sparta” and “Somali” battalions. They were supported by troops of regular Russian armed forces with heavy weaponry. This marked the start of a major new Russian offensive in eastern Ukraine.

241. On 15 January 2015, the European Parliament adopted Resolution 2965/2014 in which it recorded that since the signing of the Minsk Protocol the ceasefire had been “violated by the separatist and Russian forces on a daily basis”, and that the main points of the Memorandum signed on 19 September 2014 had “not been implemented by the Russian-backed separatists”. The European Parliament also relied on “credible sources” to conclude that “Russia continues to support the separatist militias through a steady flow of military equipment, mercenaries and regular Russian units, including main battle tanks, sophisticated anti-aircraft systems and artillery”.

242. On 21 January 2015, the OHCHR recorded that a group of fighters from the “Sparta Battalion” had captured twelve members of the Ukrainian military following an intense armed engagement at Donetsk airport. According to reports received by the OHCHR, the prisoners were subjected to torture and one of them was summarily executed.

243. On 24 January 2015, “Russia’s proxies” used BM-21 Grad multiple rocket launchers supplied by the Russian Federation against Mariupol, attacking a densely populated residential area. According to eye ‑ witness testimony and expert analysis, the perpetrators discharged at least 154 rocket volleys, killing 30 civilians, including a child, and seriously injuring a further 118. The attack damaged more than 50 residential buildings, four schools and numerous shops and businesses. The attack came from an area under “DPR” control and there was no plausible military target in the vicinity of the attack. The UN Secretary General condemned the launching of rockets indiscriminately into civilian areas and demanded an investigation to bring the perpetrators to justice.

244. From mid-January to 18 February 2015, Russian ground troops and their paramilitary support formations mounted a major offensive to retake control of the strategically significant city of Debaltseve, which had been under government control since July 2014. Russian forces carried out heavy shelling of a densely populated urban area causing significant civilian casualties.

245. On 10 February 2015, “Russia’s proxies” used a BM-30 Smerch rocket system to bombard a residential neighbourhood in Kramatorsk with cluster munitions. Kramatorsk is around fifty kilometres north-east of the contact line. There were no significant military targets in the vicinity. The bombardment fell indiscriminately on a civilian residential neighbourhood, hitting apartment buildings, schools and hospitals. Seven civilians were killed and 26 people were seriously injured. Analysis showed that the attack was launched from Horlivka, a city under the control of the “DPR”.

246. The Minsk II agreement came into effect at midnight on the night of 14-15 February 2015. Armed hostilities ceased in most areas of the combat zone but pro-Russian forces renewed their assault on Debaltseve, claiming that it was outside the terms of the ceasefire agreement. Between 16 and 18 February 2015, Russian armed forces supported by the insurgents mounted an intense military bombardment to dislodge Ukrainian positions in Debaltseve. Numerous war crimes were committed by the Russian forces during this phase of the operation, including the summary execution of Ukrainian soldiers who were hors de combat .

247. On 17 March 2015, the Ukrainian Parliament adopted Resolution 254-VIII designating certain areas of the Donetsk and Luhansk regions as temporarily occupied territories subject to time-limited special arrangements for local self-government pending the withdrawal of armed forces of the “DPR”, the “LPR” and the Russian Federation. This resolution came into force on 24 March 2015.

248. In its 10th report on the situation in Ukraine, the OHCHR noted that the ceasefire was generally observed between mid-February and mid-April 2015. There were some minor skirmishes and exchanges of fire with small arms but heavy weaponry was reported to have been withdrawn from the contact line by both sides. Nonetheless, the OHCHR continued to receive “reports of sophisticated heavy weaponry and fighters being supplied from the Russian Federation”.

249. On 31 March 2015, Dmitry Sapozhnikov, a former commander with an irregular paramilitary formation in Donetsk, gave an interview in which he confirmed that his group had received direct military assistance from the armed forces of the Russian Federation during the Battle of Debaltseve. The Russian military he encountered told him that they had been instructed to say they were on a training operation but had entered Ukraine covertly for the purpose of active military service.

250. A Russian major was detained near Donetsk in May 2015 while driving an ammunition truck. There was no comment on his arrest from the Russian government and no attempt by the Russian military to explain or justify his presence in Ukraine. He was later acknowledged by the Russian government and exchanged for captured Ukrainian soldiers.

251. In August 2015, a mass grave containing seventeen bodies was discovered in Brianka, which the OHCHR recorded.

252. A new ceasefire was announced on 1 September 2015 but almost immediately violated by the armed groups. In its report covering the period from November 2015 to February 2016, the OHCHR noted that the absence of government control over the international border running through regions occupied by Russia’s proxies in the “DPR” and the “LPR” continued to facilitate “an inflow of ammunition, weaponry and fighters from the Russian Federation to the territories controlled by the armed groups”.

253. On 2 August 2016, the SMM encountered a contingent of Russian military forces without identifying insignia guarding a “DPR” weapons holding area.

254. On 12 October 2016, the Parliamentary Assembly of the Council of Europe (“PACE”) adopted Resolution 2133 (2016) reflecting a clear conclusion that Russia bears legal responsibility for a widespread campaign of human rights violations in Donbass and that the only potential legal remedy lies with the Court.

255. On 17 February 2017, the Deputy Head of the SMM in Ukraine stated that he and other monitors had met separatist soldiers who identified themselves as soldiers of units of the Russian army.

256. On 18 February 2017, President Putin signed a decree authorising the Russian authorities to formally recognise and accept personal identification documents, and vehicle registration documents issued by the “DPR” and the “LPR”.

257. Ukrainian civilians were subject to continued military attacks, particularly during the relentless and indiscriminate shelling of Avdiivka in January and February 2017.

258. On 19 April 2017, the International Court of Justice (ICJ) issued an Order on provisional measures in proceedings brought by Ukraine against the Russian Federation. Among other things, the court ordered the State parties to work towards the full implementation of the “Package of Measures” agreed on 12 February 2015 in Minsk in order to achieve a peaceful settlement of the conflict in eastern Ukraine.

259. There were further attempts to secure a durable ceasefire in late June 2017, late August 2017 and late December 2017, all of which collapsed soon after they were announced when armed groups resumed active hostilities.

260. In August 2018, a drone belonging to the SMM filmed a large military convoy crossing the border in both directions through an unguarded dirt track near Manych village during the night.

261. Further “elections” took place in November 2018. The armed conflict has continued since then, with ongoing and unpredictable outbreaks of armed hostilities by Russia’s proxy forces in a number of areas along the contact line. Overall, there was a decreasing number of conflict-related civilian casualties during 2018.

(a) First group of children

262. On 12 June 2014, a bus with twenty-five children (sixteen orphans or children without parental care from a care home in Snizhne and nine children in foster care with the S. family) and three accompanying adults (including Ms S.) was travelling from Snizhne to a children’s sanatorium in the city of Kryvyy (Dnipropetrovsk region).

263. At around 9.30 a.m. at a checkpoint near Krasnyi Luch, Luhansk region, the bus was stopped by armed “DPR” separatists. One of the armed men entered the bus and forbade the group from moving on. On being informed that the group were travelling to a sanatorium, and after a telephone conversation with the leaders of the “DPR”, the man informed the group that he would take them to the Russian Federation to rest. He refused to accede to the adults’ request to return the group to Snizhne. The group was ordered to turn off their mobile telephones and the children’s documents were taken. The “DPR” representatives forced the bus driver, at gunpoint, to travel to the Dolzhanskyy checkpoint at the Ukrainian-Russian border in the Luhansk region.

264. At 3.40 p.m., as the party were crossing the border without the necessary exit papers, Ms S. started to shout that the children were being kidnapped. She and nine of the children were removed from the bus.

265. At 4.30 p.m., communication with the remaining sixteen children and two accompanying adults was lost. The group was transported to the Russian city of Donetsk.

266. On the same day, the First Deputy of the Head of the Donetsk Regional State Administration contacted the Children’s Rights Commissioner for the President of the Russian Federation. The latter stated that she knew nothing about the incident.

267. The Ukrainian Ministry of Foreign Affairs contacted its Russian counterparts seeking the return of the children and the prosecution of the official who had permitted their illegal transportation across the border.

268. The Ukrainian Parliament Commissioner for Human Rights applied to the General Prosecutor of the Russian Federation and the Ministry for Civil Defence, Emergencies and Elimination of Consequences of Natural Disasters requesting them to take immediate measures to prevent the illegal forcible transportation of citizens of Ukraine to Russia.

269. On 13 June 2014, the Ukrainian Acting Minister of Foreign Affairs contacted the Russian Minister for Foreign Affairs to discuss the return of the children. A request to provide immediate information concerning the abduction of the group was repeatedly sent to the General Prosecutor of the Russian Federation.

270. On 13 June 2014, the Ukrainian General Consul in the Rostov Region of Russia, Mr Moskalenko, visited the Donetsk Investigative Department of the Investigative Committee of the Russian Federation (“ICRF”) in the Rostov Region and lodged a verbal complaint. The officer on duty prepared a “record of oral submission of information of a crime committed”, signed by Mr Moskalenko. In his complaint Mr Moskalenko described the events and the whereabouts of children at the time and claimed that the incident had been an abduction. He requested that the investigating authorities “take immediate action to return to Ukraine all the children and the persons who were accompanying them”.

271. The Ukrainian Embassy in the Russian Federation submitted a request to the Border Service of the FSB for assistance in resolving formal issues regarding the exit of the children and adults from Russian territory. An agreement was reached on 13 June 2014, after the Court had notified the parties of its Rule 39 indication, that the children would be handed into the care of the Consul General of Ukraine in Rostov-on-Don (Russia).

272. The same day, the group were transferred to the Consul General of Ukraine. They were taken to the airport by Ukrainian diplomats and, at 10.20 p.m., departed for Ukraine on a chartered aircraft provided by the Donetsk Regional State Administration. They arrived at Dnipropetrovsk at 11.10 p.m.

273. By letter dated 15 July 2014, the Rostov Region Prosecutor’s Office informed the Ukrainian Parliament Commissioner for Human Rights that the investigation had not established that any unlawful, forcible transportation of Ukrainian children to Russia had taken place. This decision was not challenged.

274. The General Prosecutor’s Office of Ukraine launched a pre-trial investigation in criminal proceedings into the abduction of twenty-five children and three adults and the illegal transportation of sixteen children and two adults across the border.

(b) Second group of children

275. On 26 July 2014, sixty-one children from an orphanage in the Luhansk region (forty-three of whom were under the age of five), four further minors and twenty-two adult employees of the orphanage were abducted and forcibly taken to the Izvaryne-Donetsk checkpoint at the Ukraine-Russia border by separatists from the “LPR”.

276. On the same day, the Ukrainian Ministry of Foreign Affairs contacted its Russian counterparts requiring them to comply with international legal obligations in the sphere of protection of children’s rights and to take all necessary measures to prevent the illegal transfer of the Ukrainians across the border to the Russian Federation.

277. On 27 July 2014, the Consul General of Ukraine in Rostov-on-Don and the Commissioner for Children’s Rights in the Rostov Region reached an agreement to return the Ukrainian citizens.

278. The same day, at around 10.30 a.m. Moscow time, the abducted children and adults were returned to Ukrainian territory via the Chertkovo ‑ Milove checkpoint.

279. The Svativskyy District Police Department of the Luhansk region initiated a pre-trial investigation into the illegal deprivation of liberty or abduction of the group.

(c) Third group of children

280. On 8 August 2014, armed separatists abducted eight children from a care home for babies in Luhansk. The children were aged between eight months and two years, and six of them had cerebral palsy.

281. The children were transported across the Ukraine-Russia border at the Izvaryne-Donetsk checkpoint without medical support or the necessary paperwork.

282. On the same day, the Ukrainian Ministry of Foreign Affairs contacted its Russian counterparts requiring them to comply with international legal obligations in the sphere of protection of children’s rights and to take all necessary measures to prevent criminal action by representatives of terrorist groups.

283. The Ukrainian Ministry of Foreign Affairs also notified the Ukrainian Parliament Commissioner for Human Rights of the abduction and transfer of the children across the Russian border. She immediately contacted the Commissioner for Human Rights of the Russian Federation and requested her to take all possible measures to secure the unconditional safe return of the children to Ukraine and to provide them with necessary assistance.

284. As a result of cooperation between the Ukrainian Ministry of Foreign Affairs, the Ukrainian Embassy in the Russian Federation, the Consul General of Ukraine in Rostov-on-Don and the Ukrainian Parliament Commissioner for Human Rights on the one hand, and of the Commissioner for Human Rights of the Russian Federation, the Commissioner for Children’s Rights in the Rostov Region and the Department of Protection of Health in Rostov Region on the other, the children were transferred to the City Clinical Hospital in Donetsk (Russia) to provide them with the necessary medical care in view of their health problems.

285. On 13 August 2014, the Ukrainian Parliament Commissioner for Human Rights and the chief doctor of the orphanage in Luhansk arrived to accompany the children back to Ukraine.

286. At around 11 a.m. Ukrainian time, the children were transferred to representatives of Ukraine. At around 2 p.m. they crossed the Russia-Ukraine border through the checkpoint near the village of Milove. The children were taken to the Kharkiv Regional Specialised Orphanage no. 1 to be examined by medical personnel.

287. No criminal complaint was lodged with the Russian authorities.

288. Since October 2013, the political situation in Ukraine has been unstable. Domestic political unrest increased after the announcement by the Ukrainian government, on 21 November 2013, that they would suspend preparations for signing the Association Agreement with the EU and renew dialogue with the Russian Federation on trade and economic matters. On 17 December 2013, after talks between the Presidents of Ukraine and Russia and amid protests in Kyiv against deepening ties with the Russian Federation, an economic deal between the two States was announced. This led to mass protests against the government, starting in Kyiv but quickly spreading to other parts of the country.

289. As of 18 February 2014, when demonstrators were shot at on and near Independence Square in Kyiv, the political unrest escalated. In the weeks that followed, several public buildings were occupied, including the Ministry of Justice and City Hall. On 21 February 2014, the President of Ukraine signed a compromise deal with opposition leaders scheduling elections for the end of the year and announcing a return to the 2004 Constitution. However, the Ukrainian Parliament decided to reinstate the 2004 Constitution that same day. The President of Ukraine left Kyiv for Kharkiv on 22 February 2014, from where he travelled onwards to Crimea then to the Russian Federation. The Russian President later disclosed that the Russian Federation had assisted his travel. On 22 February 2014, one hour after the President of Ukraine stated in a televised address that he would not resign, the Ukrainian Parliament decided to remove him as he was deemed unable to perform his duties. Early elections were scheduled for 25 May 2014. A new government was formed on 26 February 2014 to act in the meantime.

290. The Russian Federation refused to recognise the new government of Ukraine and continued to recognise the former President of Ukraine as the legitimate head of State. The Russian authorities considered the request by the former President of Ukraine “to use the armed forces of the Russian Federation to re-establish the rule of law, peace, order, stability and to protect the people of Ukraine”, while the Ukrainian government asserted that this request “lacked any legal validity”. In early March 2014, the Parliament of the Russian Federation granted permission for the use of military force in Ukraine “to protect ethnic Russians”.

291. By the end of February 2014, unidentified armed men without military insignia or other identifying marks on their uniforms began to take over strategic infrastructure in Crimea, seizing the Parliament building on 27 February 2014. Because of the colour of their uniform, these men were referred to in media reports as “little green men”. The President of the Russian Federation has conceded the deployment of Russian troops in Crimea to “stand behind Crimea’s self-defence forces”. Members of the armed forces of the Russian Federation who fought in Ukraine later described how they received orders to remove insignia from their uniforms before travelling to Ukraine. On 27 February 2014, the Parliament of the Autonomous Republic of Crimea dismissed the local government and appointed Mr Aksyonov as its new “Prime Minister”.

292. On 11 and 16 March 2014, the Supreme Council of the Autonomous Republic of Crimea and the Council of the Special Status City of Sevastopol “voted” in favour of secession from Ukraine. On 16 March 2014, the reported result of a referendum on the future status of Crimea was that 96% of the voters were in favour of acceding to the Russian Federation (the reported turnout being over 81%).

293. On 18 March 2014, a “treaty” was signed between the “Republic of Crimea” and the Russian Federation formalising the annexation of the Crimean Peninsula by the Russian Federation. On 14 April 2014, Mr Aksyonov was appointed Acting Head of the Republic of Crimea by the President of the Russian Federation. In March 2015, the President of the Russian Federation admitted that he had “ordered work on returning Crimea” to the Russian Federation on 22 February 2014, in a meeting called after President Yanukovych had been overthrown.

294. On 19 March 2014, the Constitutional Court of Ukraine ruled the referendum of March 2014 unconstitutional. On 27 March 2014, the United Nations General Assembly adopted Resolution 68/262, affirming the “sovereignty, political independence, unity and territorial integrity of Ukraine within its internationally recognized borders” and underscoring the invalidity of the referendum held on 16 March 2014.

295. In March 2014, armed groups became active in several locations in the south and east of Ukraine. These armed groups were oriented towards the Russian Federation and their objective was to secede from Ukraine and to proclaim independent republics. In parts of the Luhansk and Donetsk regions, these groups succeeded in seizing public buildings.

296. The separatists consisted of local fighters and volunteers from the Russian Federation and supported by the Russian Federation, including through the deployment of (former) members of that State’s armed forces. For example, as of early April 2014, the “little green men”, earlier reported to have been seen in Crimea, were reported in the east of Ukraine. It appears that they were members of the armed forces of the Russian Federation.

297. Early April 2014, the separatists seized control of more public buildings in the east of Ukraine, such as the regional police headquarters in Horlivka, and also seized control of several towns near the Russian border. In the course of April 2014, the separatists established control of an area that included the cities of Slovyansk (being the most western gain), Luhansk, Donetsk and the village of Hrabove.

298 . On 7 April 2014, the “DPR” was proclaimed by separatists. On 11 May 2014, among widespread international condemnation, an “independence referendum” was held in the separatist-controlled parts of Donetsk province. Ukraine’s acting President called the result of the referendum a “farce” and stated that the referendum “will have no legal consequences except the criminal responsibility for its organisers”. The spokesperson of the United States’ Department of State declared that the referendum was “illegal under Ukrainian law and ... an attempt to create further division and disorder”. The President of France stated that the referendum “had no legitimacy and no legality” and that it was “null and void”. The United Kingdom’s Foreign Secretary stated that the referendum was “illegal by anybody’s standards”. The EU declared the referendum illegal and refused to recognise the outcome. It was reported that in Donetsk 89% had voted in favour of independence. Following the referendum, the “DPR” appealed to the Russian Federation to be absorbed by it. Mr Pushilin said:

“Based on the will of the people and on the restoration of an historic justice, we ask the Russian Federation to consider the absorption of the Donetsk People’s Republic into the Russian Federation ... The people of Donetsk have always been part of the Russian world. For us, the history of Russia is our history.”

299. After the referendum, and without referring to the call for absorption, the Russian Federation said that it respected the will of the people in Donetsk and Luhansk.

300. In the aftermath of the referendum, the separatists continued to seize public buildings. Meanwhile, attempts by the Ukrainian armed forces to retake control of certain areas or cities failed while the separatists continued to advance and gain more ground. Around the same time, in an interview in mid ‑ April that took place in Moscow, the President of the Russian Federation referred to south-east Ukraine as “Novorossiya”, a historic term used during the time of the Russian Empire that refers to the regions north of the Black Sea (now part of Ukraine) that were conquered by the Russian Empire in the 18th century.

(a) Expansion of the conflict to airspace

301. In the period between April and July 2014, the conflict between the separatists and the Ukrainian forces intensified and expanded into the air. In April 2014, Ukraine launched an anti-terrorism operation aimed at isolating the separatists. At that time, the separatists controlled an area in the east of Ukraine that included the cities of Donetsk, Slovyansk and Luhansk.

302. On 22 April 2014, a Ukrainian military aircraft was downed over Slovyansk. On 25 April 2014, a Ukrainian military helicopter was shot down at Kramatorsk. As of May 2014, the Ukrainian armed forces intensified their air operations leading to an increased number of incidents involving aircraft. On 2 May 2014, three Ukrainian military helicopters were shot down near Slovyansk. Other incidents with Ukrainian military helicopters occurred on 5 May, 29 May and 4 June 2014. On 6 June 2014, a Ukrainian military aircraft was downed using MANPADS at an altitude below 4,500 meters near Slovyansk.

303. During an intercepted telephone conversation on 8 June 2014, Mr Girkin said his men were outnumbered by the enemy and that “Russian support” was required to prevent the separatists losing their ground. Mr Girkin specifically requested the delivery of military material, including anti-aircraft defence.

304. On 14 June 2014, a Ukrainian Air Force military transport aircraft was downed during landing at Luhansk airport by MANPADS followed by machine gun fire, causing 49 fatalities.

305. On 23 June 2014, a convoy of the 53rd AAMB, consisting of almost fifty different vehicles including six Buk-TELARs, left its base near Kursk in the Russian Federation and travelled in a southerly direction. It was last seen south of Millerovo, twenty-five kilometres from the border with Ukraine, travelling west towards the border.

306. On 24 June 2014, a Ukrainian military helicopter was shot down near Slovyansk using MANPADS. On 1 and 2 July 2014, attempts were made to down two Ukrainian Sukhoi fighter jets, allegedly with MANPADS. On 14 July 2014, three days prior to the downing of flight MH17, a Ukrainian military transport plane was downed near Davido-Nikolskoye near the border with the Russian Federation at an altitude between 6,200 and 6,500 metres. On 16 July 2014, a Ukrainian Sukhoi fighter jet was shot at in the Donetsk region near the border with the Russian Federation while flying at an altitude between 6,250 and 8,250 meters.

307. During the days prior to the downing of flight MH17, heavy fighting continued to take place in the east of Ukraine and more specifically in the areas south-east of Donetsk, south of Snizhne and around Savur-Mohyla. Several places, including Marinovka, came under separatist control resulting in almost full control by the separatists over a passage from separatist held ‑ territory to the Russian Federation.

(b) The request for and delivery of the Buk-TELAR with crew

308. The separatists tried to acquire air defence systems in an attempt to protect the area they controlled against the air strikes by the Ukrainian armed forces. In the spring of 2014, they had already seized MANPADS from the Ukrainian armed forces. On 29 June 2014, they took over a military base of the Ukrainian armed forces in Donetsk where Buk surface-to-air missile systems were stationed. However, the Buk systems left at this military base were not operational and therefore could not be deployed. On 15 July 2014, in the afternoon, a call was made by an unidentified person to a separatist to discuss the air strikes by the Ukrainian armed forces. During the conversation, the hope was expressed that the Russian Federation would assist separatists with surface-to-air defence systems.

309. On the morning of 17 July 2014, in an intercepted telephone conversation between two separatists, it was confirmed that a “Buk” had arrived. On the same day, Mr Dubinskiy spoke with a separatist and asked whether the “Buk” had come with a crew. During that intercepted telephone conversation, it was confirmed that the “Buk” had arrived in Donetsk with a crew and that it would be sent to another location immediately.

310. In an interview with a German-based investigative journalism network, Mr Khodakovsky stated that he knew “for sure that the popular militia did not shoot down the Boeing” because they did not have “specialists” who could “operate such high-precision weapons systems”.

(c) The transport to and arrival at the launch location and launch of a missile

311. A Buk-TELAR carrying four missiles was brought into Ukraine from the Russian Federation and transported in Ukraine on a red low-loader carried by a white Volvo truck as part of a convoy accompanied by separatists. Associated Press published an article describing how two of its journalists witnessed a Buk-TELAR with four missiles travelling through Snizhne on 17 July 2014 around lunch time. They reported that the vehicles had stopped in front of them to check that they were not making videos of the convoy. According to the journalists, “[a] man in sand-coloured camouflage without identifying insignia” approached them.

312. During its transportation on the red low-loader, the Buk-TELAR was escorted by multiple vehicles, including a black minibus, a green UAZ-49 jeep, a Toyota RAV4 and a white lorry. The same vehicles are identified in different videos and photographs at different locations along its route. The Buk-TELAR was transported from Sukhodilsk, near the Russian border, towards Yenakiieve, Ukraine. It drove from Yenakiieve towards Donetsk, where it first appeared at 9.40 a.m. From Donetsk, it travelled further towards Makiivka, Zuhres, Shakhtarsk then Torez before arriving in Snizhne at around midday on 17 July 2014. In Snizhne, the Buk-TELAR was offloaded and driven under its own power in a southerly direction towards Pervomaiskyi. Intercepted telephone conversations between separatists confirm this.

313. Based on an analysis of telecommunications data, intercepted telephone conversations, witness statements, image and video analysis and satellite images, it appears that the Buk-TELAR launched a missile at around 4.20 p.m. from a field south of Snizhne and west of Pervomaiskyi. At that time, the area was under the control of the separatists.

314. On 18 July 2014, the US President stated that “[e]vidence indicates that the plane was shot down by a surface-to-air missile that was launched from an area that is controlled by Russian-backed separatists inside of Ukraine”. This evidence consisted of satellite data.

315. A witness testified that they heard and saw a missile being launched and also saw the field from which it was launched catch fire. This witness pointed out the location from which the missile was launched on a satellite image. The same location, namely an agricultural field south of Snizhne and west of Pervomaiskyi, emerged from other sources. A second witness testified that Russian military personnel were with the Buk-TELAR at the launch site. According to this witness, separatists clarified that these individuals were from the FSB.

(d) Return to the Russian Federation

316. Immediately after the launch of the missile, the Buk-TELAR was removed from the launch site leaving behind a scorched piece of land. It was driven under its own power towards Snizhne. The same witness who heard and saw a missile being launched saw the Buk ‑ TELAR being driven to the road after the launch. In Snizhne, in the late evening of 17 July 2014, the Buk ‑ TELAR was reloaded onto the white Volvo truck with the low-loader and driven to Krasnyi Luch, then to Debaltseve and from there to Luhansk.

317. At 9.32 p.m, while the Buk-TELAR was being transported back to the Russian Federation, a person named Ryazan, who has now been identified as Eduard Gilazov, called Mr Kharchenko, the commander of a combat unit in the Donetsk region addressed by Mr Gilazov as “commander”, to inform him that “a fighter” had got lost from a “Buk-launcher” and that he had lost his crew. Mr Kharchenko ordered Mr Gilazov to bring the lost crew member to him in Snizhne.

318. In the early morning of 18 July 2014, the Volvo truck and low-loader carrying the Buk-TELAR arrived in Luhansk carrying three missiles instead of four. From Luhansk the transport continued towards the Russian Federation and crossed the border.

(a) Situation in the airspace above the east of Ukraine

319. On 17 July 2014, several restrictions relating to the airspace of both Ukraine and the Russian Federation were in force. The airspace above the conflict zone in the east of Ukraine was open for civil air traffic from FL320 (which corresponds to 9,753 metres) and higher. It was used by civil aircraft on 17 July 2014, including Air India Flight 113 (in a north-western direction), Eva Air Flight 88 (in a south-western direction) and Singapore Airlines Flight 351 (in a south-western direction).

(b) The downing of flight MH17

320. The flight plan for flight MH17 included passage over Ukraine and the Russian Federation and there were no airspace restrictions that affected this part of the planned route. The entire approved flight route of flight MH17 included the Netherlands, Germany, Poland, Ukraine, the Russian Federation, Kazakhstan, Turkmenistan, Uzbekistan, Afghanistan, Pakistan, India, Myanmar, Thailand and Malaysia.

321. At 10.31 a.m. coordinated universal time (“UTC”), the aircraft took off from Amsterdam Airport Schiphol bound for Kuala Lumpur International Airport. There were 283 passengers, eleven crew members and four pilots on board (298 people in total). Nationals of seventeen different States were on board flight MH17, some of whom possessed dual nationalities. The passengers of flight MH17 were nationals and/or residents of the Netherlands, Malaysia, Australia, Indonesia, the United Kingdom, Germany, Belgium, the Philippines, Canada, Vietnam, New Zealand, Romania, Israel, Ireland, Italy, South Africa and the United States of America.

322. At 1.19:31 p.m. UTC (4.19:31 p.m. local time), flight MH17 was cruising at a height of 10,058 metres and a speed of 913 kilometres per hour and was approximately twenty-six kilometres from the Buk-TELAR. At 1.19:56 p.m. UTC, the cockpit crew made its last transmission. At 1.20:00 p.m. UTC, Dnipro Radar gave instructions to the cockpit crew but no response was received. At 1.20:03 p.m. UTC, flight MH17 crashed near Hrabove. Parts of the aircraft and human remains were observed falling from the sky. Wreckage parts of the aircraft were found within an area of about fifty square kilometres and spread over six sites, including near the villages of Rozsypne and Petropavlivka.

(c) Initial responses to the downing of flight MH17

323. In the initial (social) media responses to the downing of an aircraft in the east of Ukraine, it was stated that a Ukrainian military transport aircraft, an Antonov-26, had been downed. For example, a post on Mr Girkin’s account on VKontakte, a Russian social media site, made at around 4.41 p.m. local time (21 minutes after contact was lost with flight MH17), read, “[i]n the vicinity of Torez, we just downed a plane, an AN-26”. This message was later updated with the comment that there was information of a second downed plane, which was suggested to be a Sukhoi fighter jet used by the Ukrainian air force. Shortly after the downing, the “DPR” press and a television broadcast of the Russian outlet LifeNews both reported that a Ukrainian military transport aircraft had been downed from within separatist ‑ controlled territory. At 6.01 p.m. local time, Russian news agency Tass reported that, according to witnesses, “militia of the self-proclaimed Donetsk People’s Republic have brought down a military transport Antonov ‑ 26 (An-26) plane of the Ukrainian Air Force on the outskirts of the town of Torez”.

324. Journalists present in the area during the downing confirmed in testimonies that separatists informed them that an aircraft had been downed. One journalist was informed by the press office of the separatists that it was a military aircraft of Ukraine. A witness also testified that, initially, those present at the launch location had been pleased because they had been told that a military transport plane had been downed. Intercepted telephone conversations also confirm that it was initially believed that a Ukrainian military aircraft had been shot down.

325. As soon as it became clear that a civilian aircraft had been brought down, public announcements on the downing of a military aircraft in separatist-controlled territory were either amended or deleted. Pro-Russian media outlets started to report that flight MH17 had been downed by a Ukrainian missile or a Ukrainian fighter jet. In the following days, both the “DPR” and the Russian Federation accused the Ukrainian armed forces of downing flight MH17. On 21 July 2014, the Russian Ministry of Defence held its first press conference on the downing of flight MH17, stating that it had radar data in its possession showing a Ukrainian fighter jet in the vicinity of flight MH17. This theory was later refuted on the basis of the radar data provided by the Russian Federation, among other evidence.

(a) Cause of the crash

326. The crash of flight MH17 resulted in the loss of life of all 298 people on board. In the days after the crash and under escort of the SMM, air accident investigators from Ukraine and Malaysia and international participants of the repatriation mission were able to access the crash area to start the recovery and repatriation of the victims as well as the technical investigation into the cause of the crash. Ukraine requested the Netherlands to carry out the investigation in accordance with Article 26 of the Chicago Convention. The wreckage parts were photographed extensively during visits to the crash area, showing their locations mostly undisturbed. The majority of the wreckage was clustered at six sites, mostly at three sites south-west of Hrabove. The distribution of the wreckage parts over a large area indicated an in-flight break-up of the aircraft, which is typically the result of the detonation of a warhead with a heavy explosive charge outside the aircraft. The detonation of a heavy explosive charge is, furthermore, typically the result of the use of a heavy surface-to-air missile system.

327. The security situation of the crash site did not allow for the technical investigation to commence before 4 November 2014. On and after 4 November 2014, the security situation allowed the investigators to continue their visits to the locations of the wreckage parts. The investigators were given three opportunities to visit the crash site, namely between 4 and 22 November 2014, between 20 and 28 March 2015 and between 19 April and 2 May 2015. During a six-day period starting on 16 November 2014, wreckage parts were collected and transported to the Netherlands for further investigation. After 20 March 2015, more wreckage parts were collected from a site north-west of the village of Petropavlivka. The recovered wreckage parts were examined to determine the cause of the in-flight break-up of the aircraft. It was concluded that the cause of the crash of flight MH17 originated from the ground. MANPADS could not have caused the crash as these cannot reach the altitude of flight MH17 at the time of the disintegration of the aircraft. Only larger surface-to-air missiles, usually carrying a warhead in the form of a fragmentation device, are able to engage aircrafts of the size and speed and at the altitude of flight MH17. These fragmentation warheads contain hundreds to several thousands of pre-formed fragments that are layered around an explosive core. These fragments may take various shapes, such as the shape of bow-ties, and are designed to penetrate the target aircraft structure upon detonation of the warhead.

328. The forensic evidence confirmed that flight MH17 was downed by a Buk surface-to-air missile. It was established that a missile detonated above the left-hand side of the cockpit of flight MH17 at around 4.20:03 p.m. local time causing flight MH17 to break-up in flight and subsequently crash. The missile that caused the downing of flight MH17 was identified as a Buk system’s missile from the 9M38-series which is capable of being launched by a Buk-TELAR operating independently.

(b) The Buk surface-to-air missile system

329. A Buk surface-to-air missile system is a mobile air defence system that was introduced by the former Soviet Union in the late 1970s. It is an anti ‑ aircraft weapon system that is designed to identify targets in the air and launch a missile to eliminate them. The Buk system is equipped with one central radar vehicle and multiple launch vehicles with their own (limited) radar capability. One advantage of this improved surface-to-air missile system is that upon destruction or failure of the Buk command post (“Buk ‑ CP”) or target acquisition radar (Buk-TAR”), the Buk-TELAR is able to continue to operate independently, albeit to a limited extent. Missiles launched by a Buk system can reach targets at an altitude of up to 24 kilometres.

330. The Buk system was operated by air defence brigades of the Russian armed forces, such as the 53rd AAMB. An important step in the process of the launch of a missile is the identification of its target. The Buk-TELAR is equipped with its own radar and is thereby capable of operating on its own. The methods of the Buk system, including the Buk-TELAR when operating independently, to identify targets include the so-called “identification friend or foe” (“IFF”) method. This method is limited to giving an indication whether the target is a “friend” (one of its own military aircraft), or “foe” (not one of its own military aircraft, including foreign military aircraft and civil aircraft). Further indications as to the target’s nature can be gleaned from characteristics of the appearance of the aircraft on the radar screen. These characteristics may vary according to whether the acquired target is a fighter aircraft, a helicopter, a military transport aircraft or a civil aircraft. The identification methods employed by the Buk system, including the Buk ‑ TELAR operating independently, are not able to identify civilian aircraft as such. For information on civilian flights, the Buk-CP depends on external information from the brigade radar or the national radar and defence network. The IFF method employed by the Buk system, including the Buk-TELAR operating independently, identifies civilian aircraft as “foe” by default.

331 . The Buk-TELAR is, under normal circumstances, operated by four people: a commander, a first operator, a second operator, and a driver-mechanic. The commander is primarily responsible for communication with the battalion or brigade command post as well as with subordinates in the Buk-TELAR and/or transporter erector launcher and loader vehicle (“Buk ‑ TELL”). The commander is also responsible for target acquisition and identification and for supervision of the first and second operator. The commander is the only person on board who is trained and authorised to launch a missile. He holds the “commander’s key” which is required to launch a missile. If there is no higher command present, the commander takes the decision to launch a missile. The training of a commander is specialised and typically takes several years: in Ukraine the commander would receive five years of training. The presence of a commander is therefore indispensable to ensure the launch of a missile from a Buk-TELAR.

(a) Immediate international responses and repatriation and identification of the victims

332. The downing of flight MH17 immediately led to international responses of both States and international organisations, including the UN Security Council and the International Civil Aviation Organization (“ICAO”).

333. After the crash of flight MH17, priority was given to the repatriation of the human remains of the victims from the crash site to storage facilities where they could be preserved for further repatriation and identification. On 28 July 2014, the Netherlands and Ukraine signed an agreement on the establishment of the International Mission for Protection of Investigation tasked with facilitating the recovery of remains and conducting the investigation called for in UN Security Council Resolution 2166 (2014). However, the recovery efforts were severely hampered by the ongoing armed conflict in the area.

(b) Technical investigation

334 . A technical investigation in accordance with Article 26 of the Chicago Convention was also initiated. Ukraine, as the “State of Occurrence” responsible for instituting an inquiry into the circumstances of the crash of flight MH17, requested the Netherlands to take over the investigation. To this end, Ukraine and the Netherlands signed a Memorandum of Understanding on 24 July 2014 in which Ukraine delegated the investigation to the Netherlands.

335 . The investigation, undertaken with reference to the international standards and recommended practices in Article 13 of the Chicago Convention, was carried out by the DSB, which is tasked to investigate certain occurrences and, if necessary, make recommendations to prevent future occurrences. Ukraine, Malaysia, the United States of America, the United Kingdom, Australia and the Russian Federation participated in the investigation and appointed accredited representatives.

336. As explained, for the first four months after the crash, the crash area was unsafe and therefore inaccessible for investigation. Due to the limited access to the crash area, and to enable further investigation into the wreckage parts of the aircraft, an assessment was made as to which wreckage parts were to be transported to the Netherlands for further investigation. In total, three recovery missions of wreckage parts were organised. States who had a special interest because they had lost citizens in the crash were invited to view the recovered wreckage parts.

337. As part of the investigation, information was required and requested from other States. For example, the Russian Federation was requested to provide information regarding radar and communication data and information on weapon systems. With respect to the requested radar data, the Russian Federation informed the DSB that it was unable to provide this radar data as it had not been saved. The Russian Federation provided a video recording of the radar screen, which showed combined primary (non-processed) and secondary (processed) radar data.

338. On 9 September 2014, the DSB published its preliminary report on the circumstances of the crash of flight MH17. Its main findings were that: the crash had not been caused by a technical failure of the aircraft, its engines, or systems; damage was mainly observed on the forward section of the aircraft, and specifically on the left-hand side of the cockpit; the damage pattern indicated penetration by a large number of high-energy objects originating from outside the aircraft; and the aircraft had broken up in-flight.

339. On 13 October 2015, the DSB published its report on the technical circumstances of the crash of flight MH17. Among its main findings were the following: a) at 1.20:03 p.m. UTC, a 9N314M warhead carried by a 9M38 ‑ series Buk missile detonated outside and above the left-hand side of the cockpit of flight MH17 resulting in the penetration of the aircraft by a large number of high-energy objects; b) the structural damage caused by the detonation of the warhead led to the in-flight breakup of the aircraft, resulting in the loss of life of all 298 people on board; c) other scenarios, including an air-to-air missile, were excluded on the basis of the available evidence; d) the missile was launched from within an area of 320 square kilometres in the east of Ukraine which covers Snizhne and Pervomaiskyi.

340. The DSB also conducted a separate investigation into the availability of passenger information for the purpose of informing the next of kin of the Dutch victims. Subsequently, the DSB conducted an investigation into the follow-up of its recommendations regarding flying over conflict zones.

(c) Criminal investigation and prosecution

(i) The Joint Investigation Team

341. On 7 August 2014, authorities from the Netherlands, Australia, Belgium and Ukraine signed an agreement to set up a JIT to investigate the downing of flight MH17 and to establish the facts, identify those responsible and collect evidence which could be used in court. In November 2014, Malaysia formally joined the JIT as a member.

342. As part of the criminal investigation, a forensic investigation aimed at gathering and analysing physical evidence was carried out. The remains of the victims, their personal belongings and wreckage parts of the aircraft were subjected to forensic investigation. This led to the recovery of metal fragments and to the discovery of explosive residue on wreckage parts of the aircraft.

343. Between 2014 and the first half of 2016, investigators dismantled three Buk missiles from the 9M38-series: one 9M38-type and two 9M38M1 ‑ type. All missiles had a 9N314M warhead. The dismantling of the Buk missiles allowed investigators to compare the parts of the Buk missiles to parts that were recovered from the crash area. Arena tests were conducted in which both Buk missiles and a warhead of a Buk missile were detonated. This allowed the investigators to analyse the effects of the launch of a missile, the speed and direction of the fragmentation parts of the warhead and the form and weight of these fragmentation parts after detonation and impact. These findings were compared to the findings of the metal fragments recovered from the remains of the victims, their personal belongings and wreckage parts of the aircraft.

344. On 28 September 2016, the JIT presented its first partial findings. Its main findings were that flight MH17 had been shot down on 17 July 2014 by a Buk missile from the 9M38-series; the missile had been launched by a Buk ‑ TELAR from a field south of Snizhne and west of Pervomaiskyi, which was at the time under the control of separatists; and the Buk-TELAR had been transported from the territory of the Russian Federation into Ukraine and, after the launch, back to the Russian Federation. The JIT refuted the claim of the Russian Ministry of Defence that the launch location was near Zaroshchenskoye. It moreover established that, in any event, at the time of the downing Zaroshchenskoye was also under the control of separatists.

345. On 24 May 2018, the JIT presented further findings, namely that the Buk-TELAR which launched the missile belonged to the 53rd AAMB of the armed forces of the Russian Federation. The Buk-TELAR had been part of a convoy that travelled from its base in the Russian Federation towards the Ukrainian border between 23 and 25 June 2014.

346 . On 19 June 2019, the JIT announced the names of four suspects who would be prosecuted by the OM for organising the transportation of a Buk ‑ TELAR to the east of Ukraine around 17 July 2014 and arranging that it be brought to a location from where a Buk missile was launched which caused the downing of flight MH17. The four individuals were also suspected of being involved in the return of the Buk-TELAR to the Russian Federation. The OM subsequently indicted the following three Russian nationals and one Ukrainian national: i) Igor Girkin, former colonel of the FSB and at the time of the downing the Minister of Defence and commander of the army of the “DPR”; ii) Sergey Dubinskiy, former military officer of the GRU and one of Mr Girkin’s deputies in 2014 and head of the intelligence service of the “DPR”; iii) Oleg Pulatov, former military officer of the Russian Spetznaz ‑ GRU, the special units of the Russian military intelligence service, and in 2014 deputy head of the intelligence service of the “DPR” and one of the deputies of Mr Dubinskiy, and; iv) Leonid Kharchenko, commander of a combat unit in the Donetsk region in July 2014. They were charged with causing the crash of flight MH17, resulting in the death of all persons on board, punishable pursuant to Article 168 of the Dutch Criminal Code; and the murder of the 298 persons on board flight MH17, punishable pursuant to Article 289 of the Dutch Criminal Code.

347. At its press conference, the JIT also presented further findings and evidence including evidence as to the presence of members of the 53rd AAMB in the west of the Russian Federation near the border with Ukraine in July 2014; a chat conversation from social media in which one of the members of that convoy revealed that members of the 53rd AAMB were part of the convoy that travelled between 23 and 25 June 2014 from the base near Kursk towards Millerovo and suggested that some of them travelled onwards towards Ukraine; and evidence indicating requests made by separatists to the Russian Federation for military support in the months prior to 17 July 2014.

348. On 14 November 2019, the JIT released a witness appeal indicating that it was looking for information on the people within the military and administrative hierarchy involved in the downing of flight MH17. For the purpose of the call for witnesses, the JIT released several intercepted telephone conversations revealing further contact between “DPR” separatists and officials of the Russian Federation including the Minister of Defence of the Russian Federation, Sergei Shoigu.

(ii) The prosecution of individuals

349. In 2015, Australia, Belgium, the Netherlands, Malaysia and Ukraine proposed to establish an international tribunal for the purpose of prosecuting those responsible for crimes connected with the downing of flight MH17 under Chapter VII of the UN Charter. A draft resolution on the adoption of the Statute of the International Criminal Tribunal for Malaysia Airlines Flight MH17 was presented by Malaysia to the UN Security Council on 29 July 2015. Its adoption was vetoed by the Russian Federation.

350. On 5 July 2017, it was announced that the JIT countries had decided that any individual suspected to be responsible for the downing of flight MH17 would be prosecuted in the Netherlands under Dutch law.

351. In September 2017, it was decided that any prosecution relating to the downing of flight MH17 would be heard by the first instance court in The Hague.

352. On 19 June 2019, the OM took the decision to prosecute the suspects.

353. By letter dated 10 October 2019, the Russian Federation requested the Netherlands to consider transferring the criminal proceedings to the Prosecutor General’s Office of the Russian Federation. By letter of 10 December 2019, the Netherlands replied that such a transfer would not be in the interests of the proper administration of justice.

354. The criminal trial started on 9 March 2020. On 25 November 2020, the pre-trial stage was concluded and the trial was referred to the examining magistrate for the implementation of additional investigations.

355. The Russian Federation was not involved in the conflict in eastern Ukraine.

356. In the aftermath of the Maidan protests, Ukraine consistently failed properly to investigate the shootings. The following facts are, however, clear:

i) as the violence in Maidan got worse, European politicians attempted to mediate a constitutional settlement between President Yanukovych and leaders of the opposition;

ii) just as they reached agreement on 20 February 2014, the shootings intensified in Maidan for no apparent reason;

iii) the victims were policemen as well as protesters and both groups were shot with the same weapons and the same ammunition by the same provocateurs;

iv) the shootings came from buildings in the hands of the opposition; and

v) the resulting deaths incensed the crowds and, in the ensuing violence, the constitutional government of President Yanukovych was driven out.

357. The new authorities in Ukraine were not a constitutional government. They were installed as the result of a coup, which was not a lawful change of government. None of the constitutional bases for a President to cease to hold office applied in the present case. No impeachment procedure was initiated and President Viktor Yanukovych was not accused of any crime and/or treason, which would have been the only legitimate starting point for impeachment.

358. The new government was therefore unconstitutional and widely regarded as such in eastern Ukraine and in Crimea. It was also totally unrepresentative. The key appointees all came from the west of Ukraine. Most major posts were taken by far-right extremists from Svoboda (formerly the fascist Social National Party of Ukraine) despite the fact that Svoboda had no broad national support.

359. The new authorities were not trying to restore the rule of law and democratic values. On the contrary, immediately after the displacement of constitutional government in Ukraine, attacks began against all who opposed the new order. Ukraine launched completely unlawful violence against its own people. The result was serious suffering which prompted waves of refugees to make their way to Russia. In response, the Russian Federation was perfectly entitled to provide humanitarian assistance to try and alleviate that suffering.

360. The Nazi heritage of the thugs responsible for this violence was obvious from the chosen symbols of the entities later formalised to accommodate them, such as the Azov battalion, whose commander Andrey Biletsky notably said that, “[t]he historic mission of our nation in this critical moment is to lead White Races of the world in a final crusade for their survival. A crusade against the Semite-led Untermenschen ”.

361. In relation to eastern Ukraine, the new authorities quickly launched an “Anti-Terrorist Operation” against entire civilian communities whose only crime was to refuse to recognise the displacement of the constitutional government of Ukraine.

362. Russian troops did not invade Ukraine. As for alleged Russian military support for separatists in eastern Ukraine, there is not even a prima facie case in terms of evidence. Since August 2014, the Russian Federation has sent humanitarian aid, consisting of medicines, food, clothing, construction materials, literature for studying, presents and other materials, to suffering people in Ukraine. The convoys were delivered to the territory of Donetsk and Luhansk through the Matveyev Kurgan and Izvarino checkpoints “under control of the Ukrainian border and customs services and with the presence of representatives of the OSCE mission”.

363. Ten soldiers of the 331st Guards Airborne Regiment of the Russian armed forces were captured in Ukraine. However, these soldiers crossed into Ukraine by mistake.

364. Ukraine’s allegations of cross-border firing, of incursions into Ukraine by Russian forces who allegedly fired rockets or artillery and of control over shelling carried out by separatists are not true.

365. The people the applicant Ukrainian Government have identified as agents of the Russian Federation were not, in fact, agents. There is no basis whatsoever for regarding separatist government figures or separatist commanders as Russian agents. In particular, Mr Girkin was not a State agent of the Russian Federation.

366. Without doubt some Russians went to fight in Ukraine, along with concerned and motivated people from a range of countries. It was inevitable that Ukraine’s outrageous violence against Russian speakers in eastern Ukraine would invoke sympathy from the Russian people, who were prompted to help in various ways.

367. The three groups of children and accompanying adults who entered the Russian Federation were fleeing a dire situation created by Ukraine’s armed forces. They were not abducted but freely chose to enter the Russian Federation.

368 . In their memorials, the respondent Government disputed the findings of the DSB and the JIT as to the circumstances in which flight MH17 had been downed. In oral submissions at the hearing on admissibility, the Representative of the Russian Federation said:

“It is still argued – and no investigation has evidently and finally established – who exercised control over the territory upon which the aeroplane of Malaysia Airlines was shot down. The only certain fact is that this was the airspace of Ukraine, where the air traffic was managed by the Ukrainian air traffic authorities.

We follow attentively the course of the trial in [the] District Court of The Hague and we know that, according to the clarifications of the court-appointed expert, Mr Mikhail Malyshevskiy, the alleged missile launch took place on the territory under the control of the Ukrainian Armed Forces and the warhead which in [the] view of the Joint Investigation Team downed the aeroplane belonged once again to the Armed Forces of Ukraine.”

369 . He further emphasised:

“We know that Russia bears no responsibility in this respect. This is what we know.

We also know that it was the airspace of ... Ukraine, which was managed by the Ukrainian authorities.

.... It was established by the expert of the District Court of The Hague that [the] launch was done from the territory under control of the Ukrainian armed forces.

And we also know, and it is a matter of fact, that the missile as presented by the Joint Investigation Team is the Ukrainian one.”

COMPLAINTS

370 . Following the relinquishment of application no. 8019/16 to the Grand Chamber (see paragraph 12 above), the respondent Government and the applicant Ukrainian Government were instructed, by letter of 15 May 2019, that all arguments should be particularised in their initial memorials, and that the memorials should constitute an exhaustive outline of their positions, having regard to all documents and submissions lodged to date, as regards both facts and law, for the purposes of admissibility.

371. On 21 December 2020, after the joinder of the three applications and when inviting the parties to submit their first-stage memorials (see paragraph 26 above), the three governments were informed that their memorials, when read together with the pleadings already provided to the Grand Chamber, should constitute an exhaustive outline of their positions on admissibility in respect of the complaints made in these cases.

372 . The Court considers the complaints set out below to be the definitive and exhaustive outline of the complaints now pursued by the applicant Governments. Accordingly, only the admissibility of these complaints will be examined (see Ukraine v. Russia (re Crimea) , [GC] (dec.), nos. 20958/14 and 38334/18, §§ 246-48, 16 December 2020).

373 . In their memorials before the Grand Chamber in respect of the general situation in eastern Ukraine, the applicant Ukrainian Government pleaded an administrative practice contrary to Articles 2, 3, 4, 5, 9, 10, 11 and 14 of the Convention and Articles 1, 2, and 3 of Protocol No. 1 in the “relevant parts of Donbass”, committed by the respondent State from March 2014. The purpose of the application was said to be to vindicate the human rights of the victims, to bring the administrative practices to an end and to prevent their recurrence. The complaints were summarised as follows:

“Article 2

There are numerous reports of unlawful military attacks by Russian forces and their armed proxies against civilians and civilian objects which caused many fatalities. These include the shooting down of Malaysian Airlines flight MH17 on 17 July 2014, and numerous instances where civilians were shot dead on the ground. There are also multiple instances of civilians and Ukrainian soldiers who were prisoners of war or hors de combat being summarily executed, or otherwise tortured or beaten to death.

Article 3

Reports of the torture of civilians and Ukrainian soldiers who were prisoners of war or otherwise hors de combat have been frequently documented and verified throughout the conflict. These include many instances of sexual violence and rape. There have also been consistent reports that prisoners (particularly civilians) were held by the armed groups in conditions amounting to inhuman and degrading treatment.

Article 4

There are numerous reports and the statements of the victims that the ‘DPR’ and ‘LPR’ Russian proxies use forced labour of the Ukrainian prisoners of war and civilians for the digging of the tranches [sic] and other fortifications.

Article 5

Abductions, kidnapping for ransom, unlawful arrests and lengthy detentions became a key part of the armed groups’ methods of conflict. OHCHR and the SMM (OSCE) have recorded countless cases of such detentions. At one point, one of the leaders of the armed groups admitted that his unit alone was detaining more than 600 people. The number and length of time of these unlawful detentions is almost unimaginable, and OHCHR has identified patterns and motivations which make it quite clear that there was a pattern or system in operation, almost from the outset.

Article 9

Chapter 3 [of the initial memorial] contains reports of a number of instances of deliberate attacks on, and intimidation of, various religious congregations not conforming to the Russian Orthodox tradition.

Article 10

Throughout the conflict, the armed groups have targeted independent journalists, both from the international and the Ukrainian media. Journalists have been prevented from reporting on ‘elections’, shot dead, arrested and detained. The armed groups also blocked Ukrainian broadcasters in the areas under their control.

Article 11

Membership of political organisations supporting Ukrainian territorial integrity was violently suppressed by the armed groups. Those involved in such organisations were targeted for assassination or arrest, and these groups were prevented from meeting or operating in territory under the control of the armed groups.

Article 1 of Protocol 1

The destruction of private property by Russian forces and their proxies in the local armed groups, including civilian homes and vehicles has been commonplace throughout the conflict. There have also been numerous reported instances of theft and looting of private and commercial property throughout the areas under their control. Large swathes of private property have been unlawfully appropriated without compensation.

Article 2 of Protocol 1

Numerous schools and educational facilities have been destroyed by the armed groups. Education in the Ukrainian language has been prohibited, and teachers have been harassed, arrested and in some instances killed.

Article 3 of Protocol 1

The right to free and fair elections in the territory under the control of Russia’s paramilitary proxies has been comprehensively disrupted. Local citizens were prevented from voting in the Ukrainian Presidential elections, through acts of intimidation and violence.

Article 14

Virtually all of the violations alleged in this application were committed because of the ethnicity or perceived political affiliation of the victim. The armed groups systematically attacked civilians of Ukrainian ethnicity, or citizens who supported Ukrainian territorial integrity. That was the motivation behind nearly all of the violations alleged. Nationality and political opinion are relevant characteristics for the purpose of the article 14 analysis, and the relevant comparators are those of Russian ethnicity or pro-Russian political sympathies. It follows that nearly all of the violations of substantive Convention rights alleged in this case, also constitute violations of article 14 because the victims were singled out for attack by reason of a protected characteristic.”

374. In their first-stage memorial concerning the abduction and transfer to Russia of three groups of children and accompanying adults, the applicant Ukrainian Government set out the alleged violations in the following way:

“Ukraine’s primary case is that these facts demonstrate clearly (a) an unlawful restriction on freedom of movement in violation of Article 2 of Protocol 4; and (b) an unlawful deprivation of liberty, within the meaning of Article 5 of the Convention.

As a supplementary position, Ukraine submits that the facts arguably give rise to violations Articles 3 and 8 of the Convention, although these latter alleged violations are obviously fact-specific and will depend upon an examination of the evidence relating to the treatment of individual children, and the effect of these events upon them, during the merits phase of this case.”

375. They further clarified that they brought the case as parens patriae on behalf of the victims; or, in the alternative, that the events amounted to an administrative practice.

376. The applicant Dutch Government complained that the shooting down of flight MH17 and the failure to investigate it amounted to violations of Articles 2, 3 and 13 of the Convention. As regards the substantive aspect of Article 2, they argued:

“The Russian Federation violated Article 2 § 1 of the Convention by not safeguarding the lives of those within its jurisdiction. The Russian Federation did not ensure through a system of rules and through sufficient control that the risk to the lives of civilians from the Buk-TELAR was reduced to a minimum. In addition, in view of the real and immediate threat that the Buk-TELAR presented to the lives of persons on board a civilian aircraft, it was incumbent on the Russian Federation to take preventive operational measures to protect the individuals on board of Flight MH17. There is no indication that the Russian Federation took such measures ...

Furthermore, the downing of Flight MH17 cannot considered to be justified under Article 2 § 2 of the Convention. The deprivation of life of those on board Flight MH17 did not fall within one of the situations in which the use of force, which may result in the conclusion that the deprivation of life, is permitted.”

377. In respect of the procedural aspect of Article 2, they argued:

“[T]he Russian Federation has violated the procedural limb of Article 2 of the Convention by failing to conduct an effective official investigation itself and by failing to cooperate by not responding adequately to the requests for legal assistance of the Government.”

378. They contended in particular that the failure to conduct an effective official investigation:

“... also undermines the right to the truth of [the family of] the victims and the public in general.”

379. As regards Article 3, they argued:

“[T]he conduct of the Russian Federation in the period between the downing in 2014 until this day has aggravated the suffering and uncertainty for the next of kin of the victims to such an extent that the conduct of the Russian Federation which caused this suffering amounts to inhuman or degrading treatment in a violation of Article 3 of the Convention.”

380. They clarified:

“Their suffering is further compounded by the difficulties to visit the crash area, which is controlled by forces under the effective control of the Russian Federation. In many cases, it has not proven possible to recover and identify all human remains. Two of the victims have not even been identified at all. This deprives the next of kin of these victims of the possibility to bury or cremate the remains.”

381. Finally, they complained that:

“Article 13 of the Convention has been violated by the Russian Federation by not providing an effective remedy.”

382 . The applicant Dutch Government explained that the submission of an inter-State application allowed them “to act on behalf of all the victims and their next of kin”. They also argued that while their allegations did not amount to an administrative practice as such, their application did more than simply take the place of individuals to denounce a violation suffered by them. Their position was that their application contained aspects of both types of inter-State applications (see paragraph 751 below).

THE LAW

383. Under the terms of Article 32 of the Convention, the Court’s jurisdiction “[extends] to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47”. “In the event of dispute as to whether the Court has jurisdiction”, the decision is a matter for the Court (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 53, 17 September 2009). Its principal role, as defined by Article 19, is “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. The Court is moreover the master of its own procedure and its own rules (see Article 25 (d); Ireland v. the United Kingdom , 18 January 1978, § 210 in fine , Series A no. 25; and, more recently, Merabishvili v. Georgia [GC], no. 72508/13, § 315, 28 November 2017).

384 . Article 33 of the Convention empowers any High Contracting Party to “refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party”.

385. The Court has repeatedly emphasised that the purpose of the High Contracting Parties in concluding the Convention was not to concede to each other reciprocal rights and obligations in pursuance of their individual national interests but to realise the aims and ideals of the Council of Europe, as expressed in its Statute, and “to establish a common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideals, freedom and the rule of law” (see the Commission’s decision on the admissibility of application no. 788/60, Austria v. Italy , 11 January 1961, Yearbook, vol. 4, p. 116 at p. 138). It follows that when a High Contracting Party or Parties refer an alleged breach of the Convention to the Court under Article 33 of the Convention, they are not to be regarded as exercising a right of action for the purpose of enforcing their own rights, but rather as bringing before the Court “an alleged violation of the public order of Europe” (ibid., p. 140. See also France, Norway, Denmark, Sweden and the Netherlands v. Turkey , nos. 9940/82, 9942/82, 9944/82, 9941/82 and 9943/82, Commission decision of 6 December 1983, Decisions and Reports 35, p. 143 at p. 169).

386 . The Court’s case-law under Article 33 has identified two basic categories of inter-State application. The first category concerns cases raising general issues brought with a view to protecting the public order of Europe. The second category covers cases where the applicant State complains of violations by another Contracting Party of the basic human rights of one or more clearly identified or identifiable persons (see Slovenia v. Croatia (dec.) [GC], no. 54155/16, § 67, 18 November 2020). This second category, too, contributes to the protection of the public order of Europe by enabling the High Contracting Parties to ensure the collective enforcement of the rights guaranteed by the Convention regardless of the nationality of the identified victims and the extent to which, if at all, the applicant State’s interests are particularly affected by the alleged breach (see Austria v. Italy , cited above, p. 140). The Court has further explained that these latter claims are substantially similar not only to those made in an individual application under Article 34 of the Convention but also to claims filed in the context of diplomatic protection under international law (see Cyprus v. Turkey (just satisfaction) [GC], no. 25781/94, §§ 45, ECHR 2014; and Slovenia v. Croatia , cited above, § 67).

387. Given the events which have unfolded since the hearing and first deliberations on 26 January 2022 in the present case, the Court considers it necessary, first, to place the present applications in their overall context and, second, to explain certain questions which may arise in relation to its jurisdiction.

388. First, as regards context, the Court recalls that the events which unfolded in Ukraine in 2014 have already given rise to the decision in Ukraine v. Russia (re Crimea) [GC] (dec.), nos. 20958/14 and 38334/18, 16 December 2020, to which reference will be made in this decision where relevant. At present, in relation to events in Ukraine from 2014 onwards, the Court is seized of three further inter-State cases with Russia as the respondent State (see Ukraine v Russia (VIII), no. 55855/18; Ukraine v. Russia (IX), no. 10691/21 and Ukraine v. Russia (X), no. 11055/22). Around 8,500 individual applications, pursuant to Article 34 of the Convention, are pending against Ukraine, Russia or both in relation to the conflict in Ukraine.

390. As noted above, the application of the applicant Ukrainian Government in respect of the general situation in eastern Ukraine consists of an allegation of continuing administrative practices which began with the outbreak of hostilities in 2014 (see paragraph 373).

391. The applicant Ukrainian Government contended in their written submissions that the alleged administrative practices in respect of which there was Russian jurisdiction began in March 2014. At the oral hearing, their counsel argued that the Russian Federation established effective control over “occupied Donbass” in April 2014 and exercised Article 1 jurisdiction in respect of the areas in Donbass since at the very latest the end of April 2014.

392 . Having regard to the submissions made, the Court will examine whether the evidence before it supports the allegation of Russian jurisdiction over any “relevant parts of Donbass” at any point after 1 April 2014 and whether there is evidence at that time or later supporting the allegation of the administrative practices in breach of the Convention.

393. Since the allegation is that the administrative practices are ongoing, in accordance with its usual practice the Court will consider the evidence available to it up to 26 January 2022, the date of the admissibility hearing, in order to determine the admissibility issues arising, including the question of jurisdiction. Evidence of events post-dating the admissibility hearing will be relevant to the Court’s determinations at any subsequent merits stage as to whether any Russian jurisdiction established continued after 26 January and up until 16 September 2022, the date on which the Russian Federation ceased to be a High Contracting Party to the Convention (see paragraph 36 above); and as to the period during which the administrative practice in question, if found established, took place.

394. The Rule 39 measure put in place by the President of the Third Section on 13 March 2014 in respect of eastern Ukraine (see paragraph 2 above) ended upon the Russian Federation’s ceasing to be a High Contracting Party to the Convention on 16 September 2022.

395 . This decision is concerned only with the extent of the jurisdiction and responsibility of the Russian Federation for the violations alleged in this case. As a result, only the question of whether the Russian Federation had jurisdiction in respect of these violations falls to be discussed; the question of the jurisdiction of any other State in respect of the events in eastern Ukraine is not within the scope of the case.

396. The factual disputes in the present case are extensive. Over one thousand different pieces of evidence have been produced in annexes or cited in footnotes to support the respective positions of the three parties and many thousands of pages of supporting documentation have been submitted. As set out above (see paragraphs 17-18), in 2019 the applicant Ukrainian Government and the respondent Government were invited to express their views on the issue of fact-finding at the admissibility stage. Both parties indicated that they were opposed to the holding of a fact-finding hearing at this stage in the proceedings; such a hearing was, they said, only appropriate at the merits stage. The Grand Chamber must therefore examine the admissibility of the case (see paragraph 17 above) solely on the basis of the written evidence before it, either provided by the parties or in the public domain, applying its usual evidential rules. Where an allegation is declared inadmissible because it has not been made out on the basis of the written evidence, that decision is final .

397. The parties have relied on various types of evidence to support their allegations.

398. The applicant Ukrainian Government relied in particular on published reports and other material from international organisations and bodies, most notably the OHCHR, the OSCE and the Parliamentary Assembly of the Council of Europe (“PACE”). They also referred to information from Ukrainian State agencies and Government ministries, witness statements, evidence collected in the context of domestic criminal investigations, reports by NGOs and research collectives, newspaper articles, videos and information from other States. As regards the downing of flight MH17 they relied on the report by the DSB, the work of the JIT and reports by Bellingcat, a non-governmental research collective.

399. The applicant Dutch Government relied, inter alia , on the DSB report, Dutch police reports analysing evidence prepared in the context of the trial concerning the downing of flight MH17, material of the OM and the JIT, material from inter-governmental organisations, NGO reports and Bellingcat investigations, correspondence between the authorities in the Netherlands and Russia, diplomatic and intelligence material, transcripts of intercepted communications and media reporting.

400 . The respondent Government referred , inter alia , to a number of reports analysing the authenticity of digital material presented in the case, material related to the downing of flight MH17, witness statements, diplomatic correspondence, official documentation, reports by inter ‑ governmental organisations including the OHCHR and the OSCE, material from NGOs and research collectives, international law materials, newspaper articles and social media material and videos.

401 . The Court routinely, of its own motion, asks the parties to provide material which can corroborate or refute the allegations made before it (see Merabishvili , cited above, § 312). As outlined above (see paragraph 20), on 12 June 2020, the applicant Ukrainian Government and the respondent Government were informed that certain factual aspects of the case before the Grand Chamber, as raised by their memorials, had been identified in relation to which it was anticipated that further submissions might be of assistance to the Grand Chamber in reaching its decision on the admissibility of the complaints before it. The specific factual aspects identified were set out in an annex and were grouped under the following broad headings by reference to the submissions concerning:

402. The annex also invited the parties to include relevant submissions as to their views on evidence collected by international bodies (in particular the OHCHR and the OSCE) which might be pertinent to the factual aspects of the case identified. The parties were asked to provide all relevant evidence to which they had access in relation to the issues addressed in their further observations, and in particular any evidence which was, or might be said to be, wholly or in large part within the exclusive knowledge of the authorities of the State in question (see Ukraine v. Russia ( re Crimea) , cited above, § 256. See also Bouyid v. Belgium [GC], no. 23380/09, § 83, ECHR 2015).

403. In their subsequent supplementary memorial, the applicant Ukrainian Government said that questions directed at allegations of involvement of Russian nationals, troops and weapons in the conflict, as well as the structure of the “DPR” and the “LPR” and alleged Russian support for these bodies, were primarily for Russia to address. They contended that the evidence relevant to those questions was “wholly or mainly within the exclusive knowledge or control of the Russian Federation”. However, they nonetheless consulted relevant State agencies in Ukraine seeking additional information on these matters and provided to the Court a further eight letters from various State bodies with updated information on the matters concerned. The applicant Ukrainian Government clarified that, “[i]nevitably, Ukraine’s understanding of the factual position is based on observation and military intelligence ... However, the burden of providing evidence to the Court fully explaining Russia’s military command and deployments in eastern Ukraine remains at all times on the Russian Federation”.

404 . The respondent Government, in their supplementary memorial, provided “such answers as are possible”, noting that details of military deployments were classified; information concerning the number and types of deployed weapons and material was classified; plans and other information regarding military training were classified; and information on losses of military personnel was a State secret. By way of explanation for the failure to respond to some of the other requests for submissions, the respondent Government relied on the impracticability of collecting the information sought (for example, information on authorisations given to Russian servicemen for travel abroad) or the irrelevance of the information sought (for example, details of those in positions of leadership in the “DPR” or the “LPR” who held Russian nationality).

405. Aside from the parties’ submissions and the evidential material provided by them, the Court has had regard to material in the public domain ( Ukraine v. Russia ( re Crimea) , cited above, § 250). In the present case this material includes, notably, reports by the OHCHR and the OSCE which were not expressly cited by the parties as well as information published by the International Committee of the Red Cross (ICRC) concerning its role in the “humanitarian convoys” supplied by the Russian Federation to areas in eastern Ukraine under separatist control. It also includes material published by the JIT, the OM and the trial court in The Hague in the context of the criminal investigation and proceedings into the downing of flight MH17 even where the parties did not refer to it directly.

406. As to the standard of proof at the admissibility stage, the respondent Government argued that Ukraine was required to put forward “cogent evidence supporting each of the essential elements of its case”, namely jurisdiction, alleged violations and attribution of the alleged violations to the Russian Federation. They contended that what was required was “substantial evidence”, particularly on matters going to jurisdiction (citing Georgia v. Russia (I) (dec.), no. 13255/07, § 41, 30 June 2009). The evidence presented had to be enough to show that the three elements identified above had been “made out, to a prima facie degree, taking account of the respondent State’s contradiction and the entire record”. The applicant Governments bore the burden of proof in this respect. The respondent Government also claimed that the kind of evidence required to support a prima facie case had to be related to the kind of evidence ultimately required at the merits stage of the case. Thus, the evidence had to be capable of excluding reasonable doubt given that, in accordance with the Court’s case-law, the case ultimately required proof beyond reasonable doubt.

407. The respondent Government maintained that the Court had to require primary evidence at the admissibility stage and scrutinise it carefully. Where an applicant relied on secondary material, the Court had to look carefully at the material, its sources and the connections of these sources. When “fakery” had been demonstrated, any fair exercise of discretion by the Court would not allow a case to be sustained by secondary evidence without primary evidence. “Credulous acceptance” of secondary evidence had the practical effect of reversing the burden of proof, which was inconsistent with justice. The unfairness against the respondent State that all of this entailed was exacerbated by the Court’s failure to allow adequate hearings with adequate opportunity to present evidence. It was not for Russia to disprove the Ukrainian allegations: such an approach was unsustainable as a matter of law, disregarded the impossibility of proving a negative and ignored the fact that many military matters in Russia were classified.

408 . The applicant Ukrainian Government had failed to present proper evidence in respect of essential elements of their case and prove them to the necessary prima facie standard. They had failed to provide any evidence at all for vast tracts of their allegations, including those concerning jurisdiction. It was “hugely significant” that Ukraine had not put forward technical evidence from its military as to where the alleged shelling had originated. Many allegations were supported by evidence that was demonstrably false. Other allegations were merely supported by assertions from Ukraine’s State agencies. Even where a witness was identified, the statement given was often mere assertion and did not cover the full scope of the allegation made.

409 . Moreover, the applicant Governments had relied on dubious digital material and reports from “so-called” citizen journalists, such as Bellingcat and InformNapalm, who “purport to validate digital pictures and videos and to ‘geo-locate’ them in Ukraine”. This kind of material was susceptible to manufacture or manipulation: techniques were now so sophisticated that false material was virtually undetectable. The problem was exacerbated where material was circulated on social media because this process stripped the material of data necessary for proper forensic examination. This was why other courts and specialist lawyers insisted on proof of provenance before relying on digital material. However, the applicant Ukrainian Government had supplied no authentication or metadata for much of the digital material upon which they relied; the same applied to the secondary sources they cited. The respondent Government provided examples of digital data they claimed had, or could have, been manipulated or manufactured. The applicant Ukrainian Government had failed to engage on the substance of these “detailed points”. Bellingcat’s work was quite obviously the foundation of the work of the JIT.

410 . The “ faux experts” responsible for preparing the secondary evidence relied upon by the applicant Governments were, in reality, not experts at all and had no claim to expertise in technical knowledge of weaponry, geolocation or determining the direction of shellfire. Many had clear links to security establishments of Ukraine or other States with a hostile information agenda against the respondent State and could not therefore be said to be objective. The respondent Government criticised the Atlantic Council as being a “propaganda vehicle associated with NATO”, referring to funding from NATO and the United States and United Kingdom Governments, and pointed to links between Bellingcat investigators and the Atlantic Council. This dubious digital material and “ faux expert” commentary reflected a system of disinformation used by the Five Eyes States (US, Canada, UK, Australia and New Zealand). Russia had never agreed that fact-finding be delegated to such “ faux expert” groups.

411 . The respondent Government commented, specifically, on reports by Bellingcat and InformNapalm and alleged a general lack of expertise and qualifications. They highlighted some examples of what they considered to be flawed analysis by researchers in these reports or outright manipulation of data. For example, as regards the Bellingcat report “Geolocating Stanislav Tarasov”, the respondent Government argued that the photograph of the soldier sitting on a tank had been manipulated to remove identifying numbers from the tank, which were present in the same photograph used by the Atlantic Council, noting that “Bellingcat likes to claim that Russian forces remove numbers from their vehicles before sending them to Ukraine”. This “mistake”, they said, had prompted closer examination of the photograph by their expert, Mr Rosen, which had revealed other “indications of potential fakery” including a slight halo around Mr Tarasov, “which may indicate montage”. They added that, “it may be that the entire column is cloned from a single vehicle”.

412 . The respondent Government also criticised the authors of a report by the Royal United Services Institute (“RUSI”), which discussed leaked emails claimed to be from Mr Surkov’s email accounts, alleging their anti-Russian backgrounds and connections. They disputed the authenticity of the emails analysed and dismissed the report as “fiction”, stating that, “Mr Surkov did not use email”.

413 . The intercept evidence relied on by the applicant Governments, which had been provided exclusively by the Ukrainian security service (“SBU”), had also been falsified. For example, the recorded conversation of an intercepted conversation involving Mr Bezler which had initially been published by the SBU on its website had been a truncated section deliberately omitting Mr Bezler’s reference to the fact that a Sukhoi military plane had been shot down. This omission had become apparent following the release of the full version of the conversation. An expert report by Mr Rosen pointed to varying noise levels and discontinuities in specific recordings. As to the criticism that Mr Rosen’s report had been based on a compendium of the intercepts released on YouTube by the SBU, neither applicant Government had provided the original digital files for analysis. In any event, although the compendium lacked the metadata of the original files, it had copied their content, so Mr Rosen’s comments remained valid.

414 . The respondent Government expressed their opposition to any reliance by the Court on the conclusions of the OHCHR. There had been no agreement by States to delegate decision-making to the OHCHR and such a course of action would be inappropriate not least because the OHCHR applied a lower standard of proof (“reasonable grounds to believe”). In any event, the applicant Ukrainian Government had quoted mere allegations recorded by the OHCHR and not factual findings it had made. The respondent Government referred, further, to concerns about “distorted” descriptions of events by the OHCHR. Particular care was warranted in the present case when reliance was placed on any purported assessment of facts by bodies that were potentially influenced by political interests. Referring to the Court’s approach to evidence in its decision in Ukraine v. Russia ( re Crimea) (cited above), the respondent Government concluded that the Court’s “lack of sensitivity to compromising connections and funding is unfortunate”. The Court should have been cautious about relying on the OHCHR in its decision given the partners it listed in its report, which included the applicant Ukrainian Government and other likely “sponsored sock-puppet NGOs”.

415 . The respondent Government refuted all the evidence presented as to alleged Russian involvement in the downing of flight MH17. The findings of the DSB and the JIT were based on “sham investigations that began with an agenda of blaming Russia”. Digital media relied upon in the investigations was fake. The DSB and the JIT had failed to collect, investigate and analyse primary physical evidence properly. They had instead relied on physical evidence with wholly unclear provenance and physical evidence which had been interfered with at the crash site and in the DSB’s custody. The respondent Government highlighted a number of aspects in the DSB report which they contended were unsatisfactory. They drew particular attention to the differences between the DSB draft report and its subsequent final report, which they said showed additional pieces of the aircraft while giving no explanation of why they had not featured in the draft report. They also drew attention to what they alleged were clear attempts to manipulate the evidence so as to show penetrative damage from the outside, to suit the allegation that the aircraft had been downed by a Buk missile. Such alleged manipulation included creating a false impression of “dishing” (the inward distortion of plates by a pressure wave from an explosion outside), interfering with the wreckage to render the physical evidence more consistent with its conclusions and fabricating evidence of bow-tie shrapnel (shrapnel which, if present, made it possible that the missile had come from Russia). They also disputed the sound analysis of the cockpit recorder, which had been cited in support of the conclusion that the aircraft had been penetrated externally and not from the inside. The DSB and the JIT had ignored Russia’s evidence about the serial numbers that appeared on one of the parts of the missile. The applicant Dutch Government had failed to deal with many substantive points made to show that key digital evidence was fake. They had not produced a single digital file with their application to enable a proper analysis of their authenticity despite the fact that digital files already in the public domain had been shown to be fake. The respondent Government did not accept that the Netherlands’ Forensic Institute (“NFI”) had checked the digital material provided by the applicant Governments. There was no detailed evidence from the NFI that even began to address the detailed substantive points made by Russia and if the source material itself had been manipulated, then there was no possibility of the NFI authenticating it. Moreover, the Netherlands had a history of information operations against Russia.

416. In respect of the alleged abduction and transfer to Russia of three groups of children and accompanying adults, the application contained assertions without citing evidence in support and some of the annexes were not provided in English. The applicant Ukrainian Government had failed to summarise investigations allegedly carried out into the incidents or to provide the underlying material. They had presented no prima facie evidence of any abductions.

417. The respondent Government invited the Court to draw “all appropriate adverse inferences” against the applicant Governments from their failure to produce essential evidence in support of their claims.

418 . The applicant Ukrainian Government argued in their initial memorial that at the admissibility stage of an inter-State case the Court’s assessment of Article 1 jurisdiction was limited to “the question whether its competence to examine the applicant Government’s complaints is excluded on the grounds that they concern matters which cannot fall within the jurisdiction of the respondent Government” (citing Georgia v. Russia (II) (dec.), no. 38263/08, § 64, 13 December 2011). The operative question was whether the alleged violations were “capable” of falling within Russian jurisdiction. Although expressly invited to comment on the Court’s decision in Ukraine v. Russia ( re Crimea) (cited above) in their second-stage memorial, the applicant Ukrainian Government did not address the impact of that decision on their previously stated position as to the standard of proof in this respect. At the hearing on admissibility, counsel argued that on the basis of the evidence he had touched upon in his oral submissions and the evidence set out by the applicant Ukrainian Government in their memorials, it was “abundantly clear that [the alleged] violations [were] capable of falling within the jurisdiction of the Russian Federation”.

419. As to the substantive allegations of Convention violations, they referred in their initial and supplementary memorials to the “relatively low evidential threshold applicable at the admissibility stage of an inter-State case”. This explained why the respondent Government had resorted to the “extreme submission that Ukraine’s case is a complete fabrication, advanced with the connivance of various other States and international entities”. It was not for the Court to assess the weight of the evidence at the admissibility stage. In order to demonstrate a prima facie case, an applicant State needed only to demonstrate that its allegations were not wholly unsubstantiated or lacking the requirements of a genuine allegation in the sense of Article 33 of the Convention (citing Georgia v. Russia (I) (dec.), cited above, §§ 43-44). Once that low evidential threshold had been surmounted, the burden of proof shifted to the respondent State. Where the evidence was wholly or largely within the exclusive knowledge of the respondent State, a failure to answer the allegations to the Court’s satisfaction would result in the drawing of an adverse inference of fact. The applicant Ukrainian Government did not clarify or adjust their pleadings in this respect following the delivery of the Court’s decision in Ukraine v. Russia ( re Crimea ) (cited above). At the hearing on admissibility, counsel reiterated their position that there was no evidential threshold to be overcome but argued that, in any event, the evidence here was overwhelming.

420. The applicant Ukrainian Government agreed with the need to establish the authenticity of underlying material to which open-source researchers, such as Bellingcat, referred when conducting data analysis and geolocation, to ensure that it had not been manipulated. However, they contended that the respondent Government had adduced no expert evidence to challenge the reliability of geolocation analysis as a method of proof. It was clear from the reports on the subject to which the respondent Government had referred that evidence of this nature was “a new frontier which can produce reliable and highly probative conclusions in complex cases”. The applicant Ukrainian Government were of the view that the merits phase of the present proceedings would offer ample opportunity for all parties to produce expert evidence on the probative value of the open-source reporting by Bellingcat and others. However, in light of the evidential threshold for the admissibility phase of inter-State proceedings, the Court was not now required to reach a final view on each item of evidence relied upon.

421. As to specific challenges to particular pieces of evidence, the applicant Ukrainian Government argued that each example given by the respondent Government was “demonstrably misconceived” and explained why they took that view. There was nothing in any of the respondent Government’s points about the reliability of individual items of evidence identified by them as suspect.

422. In respect of challenges to evidence relevant to the downing of flight MH17 the applicant Ukrainian Government referred, inter alia , to the forensic examination and independent verification carried out by the Dutch authorities. This included reports prepared in respect of the relevant video and intercept evidence. This material supported the contention that the evidence presented was authentic. As to the criticisms of the DSB report, the allegation concerning the bow-tie shrapnel was “nonsensical”. This shrapnel suggested that the missile used was one to which both Ukraine and the Russian Federation had access. Had the DSB wished to fabricate evidence implicating Russia it would have been easy to plant evidence pointing to a weapon in the exclusive possession of the Russian forces. On the basis of these “far-fetched submissions” the respondent Government had suggested a “carefully organised international conspiracy” involving Ukrainian intelligence services acting in concert with the DSB, the JIT, Google Earth and others “all financed by what Russia describes darkly as ‘familiar adverse sources’”. The sheer number of people and organisation that would have to have been involved in and given approval for such a conspiracy showed how implausible the respondent Government’s argument was.

423. There was likewise no substance to the respondent Government’s criticism, on grounds of alleged bias and lack of expertise, of the various sources of evidence presented by the applicant Ukrainian Government. The submissions of the respondent Government took the form of a “series of suggested associations between individuals and western democratic government or institutions”. The implicit suggestion was that anyone with such associations, however indirect, must be biased against Russia to such an extent that the evidence they provided should be regarded as inherently unreliable, irrespective of its apparent probative value. In any case, the evidence identified in the respondent Government’s initial memorial was not, for the most part, expert opinion at all and had not been presented as such. It was technical evidence, supported by underlying metadata and other analysis available for examination during the merits stage of the proceedings. The specific, articulable objections to the reliability of any particular item of evidence had been addressed by the applicant Ukrainian Government in their supplementary memorial. Beyond these instances, there was no basis for a generalised attack on the integrity of Ukraine’s evidence. The NGO reports relied upon were generally characterised by source evidence which bore the indicia of reliability. Photographic and video evidence, geolocation analysis, satellite imagery and contemporary military and political assessments were all sources that had the capacity to shed important light on the pattern of violations alleged.

424. As regards the respondent Government’s “sweeping generalisations” about disinformation, they “cast no light on the specific allegations in the present case”. There was no expert or other evidence explaining how it was suggested that any of the Five Eyes States were said to be involved in the international conspiracy alleged.

425. The evidence concerning Russian involvement in the conflict in eastern Ukraine was wholly or mainly within the exclusive knowledge or control of the Russian Federation. This being the case, the respondent Government bore the burden of providing evidence to the Court fully explaining Russia’s military command and deployments in eastern Ukraine. It was not open to the respondent Government to make an unparticularised and general attack on the evidence adduced by Ukraine and then to fail, or refuse, to provide the Court with relevant evidence that was under its exclusive control. To the extent that the respondent Government disputed the allegations made by Ukraine, they bore the burden of answering the Court’s questions in its letter of 12 June 2020 and adducing relevant evidence of the true position.

426. The applicant Dutch Government argued that at the admissibility stage in an inter-State case there was no room for a preliminary examination of the merits. In determining the existence of prima facie evidence, it had to be ascertained whether the allegations of the applicant Governments were “wholly unsubstantiated” or were “lacking the requirements of a genuine allegation in the sense of Article 33 of the Convention”. This prima facie threshold had been met in respect of their application. The applicant Dutch Government made no separate submissions on the evidential threshold to be applied to the matter of jurisdiction at the admissibility stage.

427. Notwithstanding the evidence in the application in respect of the downing of flight MH17, certain information regarding the relevant issues was primarily within the exclusive knowledge of the respondent State. That State had the “monopoly of first ‑ hand evidence” and had failed or refused to share such information. The respondent Government had been granted ample opportunities to share specific information that was within the exclusive knowledge or possession of the Russian Federation, such as the whereabouts of the relevant Buk ‑ TELAR of the 53rd AAMB on 17 July 2014, but had failed to submit the relevant information.

428. It was ultimately within the Court’s discretion to decide whether governmental sources or NGO reports were useful. The Court’s practice provided sufficient safeguards to ensure the objective assessment of the credibility and reliability of this material. Fact-finding might be difficult and might take a longer time under certain circumstances, but “difficult” did not mean “impossible”. This was demonstrated by the various investigations carried out into the situation in eastern Ukraine and the downing of flight MH17. The findings of these investigations were corroborated by numerous reports and statements of other States, investigative journalists and international governmental and non-governmental organisations.

429. The applicant Dutch Government set out in some detail the investigative and reporting processes of the DSB and of the OM, in the context of the JIT. The two investigations had been carried out independently from one another. This meant that some of the work carried out in the context of the technical investigation (by the DSB), such as the forensic investigation of the wreckage, had been carried out separately as part of the criminal investigation (by the OM and the JIT). Moreover, to ensure that the evidence collected as part of the JIT would be admissible in the national courts of all the States involved, the JIT investigation had complied with all national legal standards of the different States, thus the highest applicable legal standards, including evidentiary standards, had been adopted.

430. Each conclusion reached as part of the criminal investigation had been reached after an “independent process of collecting, verifying, validating and assessing single pieces of evidence”. Neither the OM nor the JIT had evaluated the methodology of others (such as Bellingcat) so as to verify their findings. Instead, the findings of other parties had always been carefully verified through their own investigative processes. In all cases the investigation team itself had determined the correct geolocation based on its own material. Throughout the years, the JIT investigation and results had found broad international support. Accusations of fabrication or manipulation of materials were “unfounded and unconstructive to the establishment of truth, justice and accountability”.

431. The applicant Dutch Government referred to the “unfounded criticism” by the Russian Federation of the various investigations carried out into the downing of flight MH17 and its reference to a conspiracy. The Russian Federation was “isolated in voicing this conspiracy” and unable to provide convincing evidence of it. Meanwhile, it had tried to hamper investigations and denied the overwhelming evidence with respect to its activities in eastern Ukraine and its role in the downing of flight MH17. The respondent Government continued to present an incomplete picture to the Court and failed to take into account all relevant findings. Instead, their arguments were conveniently selective in presenting some of the findings while ignoring a significant portion of related findings that did not correspond to their position. Furthermore, the respondent Government had repeatedly quoted out of context and in this way were misleading the Court.

432. Moreover, in seeking to discredit the investigations, the respondent Government had relied on invalid conclusions, thereby invalidating their whole argument. The applicant Dutch Government set out various examples of this by reference to the respondent Government’s submissions, relying inter alia on statements and material presented by the OM in open court in the criminal proceedings in The Hague to show the invalidity of the Russian arguments. The DSB report and the OM investigation were based on first ‑ hand evidence. This evidence included witness statements, original visual and audio recordings, debris recovered from the wreckage and material recovered from the victims’ bodies. The Russian Federation’s approval of these investigations was not required in order to establish their legitimacy. The applicant Dutch Government also disputed the accuracy of assertions made by the respondent Government as regards the DSB’s conclusions on various matters, including dishing and the missile used. A number of the respondent Government’s arguments went into the merits and should be addressed at that stage. This included the detailed assessment and evaluation of the evidence submitted as regards the route of the Buk-TELAR from the Russian Federation to the launch site in eastern Ukraine. The applicant Dutch Government expressed their willingness to assist the Court at that stage with additional information debunking the claims of the Russian Federation regarding alleged manipulated material.

433. The Russian Federation had engaged in a policy of denial and attempts to undermine the investigations carried out by others, rather than adopting a more proactive role. The conduct of the Russian Federation raised the question whether it was furnishing all the necessary facilities to make possible a proper and effective examination of applications by the Court. This was particularly important given its exclusive access to information with respect to its role in the downing of flight MH17. Russia’s conduct and narrative “cannot be regarded as a serious attempt to cooperate with the Court on the basis of Article 38 of the Convention”. The applicant Dutch Government asked the Court to draw such inferences as it deemed appropriate.

434. In its decision in Ukraine v. Russia ( re Crimea) (cited above, §§ 249 ‑ 66 and 378-91), the Court referred to the established case-law of the Commission and the Court, going back to the Commission’s second admissibility decision in “the Greek case” ( Denmark, Norway , Sweden and the Netherlands v. Greece , nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission decision of 31 May 1968, unreported) and the Court’s judgment in Ireland v. the United Kingdom (cited above, § 161 ), and set out in detail its approach to the evidence. Some additional observations made by the Grand Chamber in its prior judgment in Merabishvili (cited above, §§ 312-13) are of further relevance to the present case. The general principles that may be drawn from those cases, and which are relevant to the assessment of the evidence in the present case-file, can be summarised and explained as follows.

(a) The burden of proof and drawing of inferences

435 . As a general principle of law, the initial burden of proof in relation to an allegation is borne by the party which makes the allegation in question ( affirmanti incumbit probatio ) (see Ukraine v. Russia ( re Crimea) , cited above, § 255).

436 . The Court has, however, recognised that a strict application of this principle is not always appropriate. Where the respondent State alone has access to information capable of corroborating or refuting the applicant’s allegations but fails to provide a satisfactory and convincing explanation in respect of events that lie wholly, or in large part, within the exclusive knowledge of the State’s authorities, the Court can draw inferences that may be unfavourable for that Government. Before it can do so, however, there must be concordant elements supporting the applicant’s allegations (see Ukraine v. Russia ( re Crimea) , cited above, § 256).

437. Article 38 of the Convention requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact ‑ finding investigation or performing its general duties as regards the examination of applications. The conduct of the parties when evidence is being obtained may therefore also be taken into account and inferences may be drawn from such conduct (see Ukraine v. Russia ( re Crimea) , cited above, §§ 256 and 380; Georgia v. Russia (II) [GC], no. 38263/08, § 341, 21 January 2021; and Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 252-54, ECHR 2004‑III). The Court has, in the past, drawn inferences from a failure by the respondent State to provide documents requested (see, for example, TimurtaÅŸ v. Turkey , no. 23531/94, §§ 66-72, ECHR 2000-VI; Akkum and Others v. Turkey , no. 21894/93, §§ 185-190 and 225, ECHR 2005 II (extracts); Çelikbilek v. Turkey , no. 27693/95, §§ 56-63, 31 May 2005; and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 152 ‑ 67, ECHR 2012). In El-Masri the Court shifted the burden of proof to the respondent Government once it was satisfied that there was prima facie evidence in favour of the applicant’s version of events. As a result of the Government’s failure to provide relevant explanations or supporting documents, the Court drew inferences from the available material and the authorities’ conduct and found the applicant’s allegations sufficiently convincing and established beyond reasonable doubt (see §§ 165-67 of the judgment).

438. The Court further refers in this respect to Rule 44A of the Rules of Court, which provides that the parties have a duty to cooperate fully in the conduct of the proceedings and to take such action within their power as the Court considers necessary for the proper administration of justice. Moreover, pursuant to Rule 44C § 1, where a party fails to adduce evidence or provide information requested by the Court or to divulge relevant information of its own motion or otherwise fails to participate effectively in the proceedings, the Court may draw such inferences as it deems appropriate. Rule 44C § 2 plainly states that the failure or refusal by a respondent Contracting Party to participate effectively in the proceedings shall not, in itself, be a reason to discontinue the examination of the application. It is clear from the well ‑ established case-law of the Court and from Rules 44A and 44C that if a respondent Government fail to comply with a request by the Court for material which could corroborate or refute the allegations made before it and do not duly account for their failure or refusal, the Court can draw inferences and combine such inferences with contextual factors (see Merabishvili , cited above, § 312).

439 . The level of persuasion necessary for reaching a particular conclusion and the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegations made and the Convention right at stake (see Ukraine v. Russia ( re Crimea) , cited above, § 257).

(b) Assessment of the evidence

440. There are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment: the Court has complete freedom in assessing not only the admissibility and relevance but also the probative value of each item of evidence before it. The Court adopts those conclusions of fact which are, in its view, supported by the free evaluation of all material before it irrespective of its origin, including such inferences as may flow from the facts and the parties’ submissions and conduct (see Ukraine v. Russia ( re Crimea) , cited above, §§ 379-80).

441. Proof may follow from the “coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact” (see Ukraine v. Russia ( re Crimea) , cited above, § 257).

442. The Court takes into account reports and statements by international observers, NGOs and the media as well as decisions of other international and national courts to shed light on the facts or to corroborate findings made by the Court (see Ukraine v. Russia ( re Crimea) , cited above, § 257). Its assessment of the evidence, and in particular the weight to be given to it, varies in view of the different nature of the material, the source of the material and the degree of rigour applied to its collection and verification.

443. It has thus often attached importance to material from reliable and objective sources, such as the UN, reputable NGOs and governmental sources. However, in assessing its probative value a degree of caution is needed since widespread reports of a fact may prove, on closer examination, to derive from a single source. In relation to such material, consideration should be given to the source of the material and in particular its independence, reliability and objectivity. The Court also considers the presence and reporting capacities of the author in the country in question: it will not always be possible for investigations to be carried out in the immediate vicinity of a conflict and in such cases information provided by sources with first-hand knowledge of the situation may have to be relied upon. Consideration is given to the authority and reputation of the author, the seriousness of the investigations forming the basis for the report, and the consistency of the conclusions and their corroboration by other sources (see Ukraine v. Russia ( re Crimea) , cited above, §§ 386-88).

444. Media reports, on the other hand, are to be treated with caution. They are not themselves evidence for judicial purposes, but public knowledge of a fact may be established by means of these sources of information and the Court may attach a certain amount of weight to such public knowledge (see Ukraine v. Russia ( re Crimea) , cited above, § 383).

445. The direct evidence of witnesses is also taken into account by the Court (see the Georgia v. Russia (II) judgment, cited above, and IlaÅŸcu and Others v. Moldova and Russia [GC], no. 48787/99, § 26, ECHR 2004 ‑ VII). Even where the domestic authorities have not been given the opportunity to test the evidence and the Court itself has not had the opportunity to probe the details of the statement in the course of the proceedings before it, this does not necessarily diminish its probative value (see El-Masri , cited above §§ 161-62). It is for the Court to determine whether it considers a statement to be credible and reliable, and what weight to attach to it.

446 . The Court may also rely on witness statements from Government officials. Statements by Government ministers or other high officials should, however, be treated with caution since they would tend to be in favour of the Government that they represent. That said, statements from high-ranking officials, even former ministers and officials, who have played a central role in the dispute in question are of particular evidentiary value when they acknowledge facts or conduct that place the authorities in an unfavourable light. They may then be construed as a form of admission (see Ukraine v. Russia ( re Crimea) , cited above, §§ 334 and 381). Similar considerations apply to official documents and intelligence material provided by State ministries and agencies.

447. There is no need for direct evidence from alleged victims in order for a complaint about an administrative practice to be regarded as admissible (see Ukraine v. Russia ( re Crimea) , cited above, § 384).

448. A delay in collecting evidence, or its collection specifically for the purposes of proceedings before this Court, does not render such evidence per se inadmissible (see Ukraine v. Russia ( re Crimea) , cited above, § 381).

(c) The standard of proof at the admissibility stage

(i) Standard of proof in relation to the alleged violations

449 . The manifestly ill-founded test set out in Article 35 § 3 does not apply to inter-State cases. However, this does not exclude the application of a general rule providing for the possibility of declaring an inter-State application inadmissible if it is clear, from the outset, that it is wholly unsubstantiated, or otherwise lacking the requirements of a genuine allegation in the sense of Article 33 of the Convention (see, most recently, Slovenia v. Croatia , cited above, § 40-41).

450 . An administrative practice requires that two elements be demonstrated, namely the repetition of acts constituting the alleged violation and official tolerance of those acts (see France, Norway, Denmark, Sweden and the Netherlands v. Turkey , nos. 9940/82, 9942/82, 9944/82, 9941/82 and 9943/82, cited above, at p. 163; and Cyprus v. Turkey [GC], no. 25781/94, § 99, ECHR 2001 ‑ IV). The Grand Chamber has recently clarified that the applicable standard of proof for the purposes of admissibility in respect of allegations of administrative practices is that of “sufficiently substantiated prima facie evidence” (see Ukraine v. Russia ( re Crimea ), cited above, §§ 261-63).

451. The Court is satisfied that as far as allegations of individual violations are concerned, the standard of proof applicable at the admissibility stage of proceedings is also that of “sufficiently substantiated prima facie evidence”. A uniform standard in respect of both types of allegations promotes internal consistency and harmony in the interpretation and application of the evidentiary admissibility threshold in inter-State cases. This is particularly desirable in cases, such as the present, where allegations are presented as both administrative practices and as individual violations. While the standard imposes a degree of rigour in viewing the evidence provided, in the case of a “genuine allegation” it is hard to envisage that an applicant State would be unable to gather and provide to the Court the necessary evidence to meet this threshold.

(ii) Standard of proof in relation to jurisdiction

452. The Court may determine the issue of the respondent State’s “jurisdiction” under Article 1 of the Convention at the admissibility stage of the proceedings (see paragraph 507 below). Where it does so, the “beyond reasonable doubt” standard of proof applies (see Ukraine v. Russia ( re Crimea ), cited above, § 265).

453. As regards the content of that standard, it has never been the Court’s purpose to borrow the approach of the national legal systems that use that standard. The Court’s role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII).

(a) Burden and standard of proof and the drawing of inferences

454 . In line with the above principles, the applicant Ukrainian and Dutch Governments bear the initial burden of proof in respect of their allegations as to Russian jurisdiction and the violations alleged. Should the Court consider that the matter of Article 1 jurisdiction should be resolved at this stage of the proceedings, the applicable standard is “beyond reasonable doubt”. The allegations of violations, on the other hand, require only sufficiently substantiated prima facie evidence in order to progress to an examination on the merits.

455. As noted above (see paragraphs 401-402), in view of the complexity of the factual background to the present case, the applicant Ukrainian Government and the respondent Government were asked, in the context of their supplementary memorials, to address a number of specific matters which had been extensively canvassed in the initial memorials and to provide supporting evidence, in particular any evidence which was, or might be said to be, wholly or in large part within their exclusive knowledge. As set out above, the respondent Government declined to provide submissions or evidentiary material in respect of a number of the aspects identified, citing national security concerns and lack of relevance of the material to the questions under judicial consideration (see paragraph 404 above). The Court observes that the information and supporting material sought was wholly or in large part within the exclusive knowledge of the respondent State.

456 . The Court considers that through various sets of memorials, there has been a distinct lack of frankness and transparency in the written submissions provided by the respondent Government. For example, the evidence clearly demonstrates the importance of information concerning Igor Girkin, who was a key player in the events in Crimea and in eastern Ukraine and is one of the defendants in the Dutch criminal proceedings concerning the downing of flight MH17 (see paragraph 93 above). The allegation is that he was an agent of the FSB. The respondent Government in their submissions appeared to be deliberately vague when discussing Mr Girkin (see paragraph 511 below). They did not confirm whether the allegation was true and referred merely to press reports that Mr Girkin had retired by April 2014. There can be no doubt that they are in a position to clarify whether Mr Girkin was employed by the FSB and, if so, whether and when he retired. Furthermore, given the Court’s finding of Russian extraterritorial jurisdiction over Crimea from 27 February 2014, the respondent Government were also in a position to explain Mr Girkin’s involvement in the events there and the nature of the instructions given to him (see Ukraine v. Russia ( re Crimea) , cited above, in particular §§ 33, 47, 329 and 352).

457. Moreover, the Court takes the view that the respondent Government’s responses to the specific request for further information and material in the supplementary memorials were superficial and evasive. For example, when asked about the parties and individuals involved in the negotiations concerning the retreat of the Ukrainian army at Ilovaisk in late August 2014, they responded simply that they “cannot comment” on the existence of any negotiations. They did not clarify whether such inability was alleged to arise from a lack of knowledge, or from an unwillingness to disclose the requested information. The Court does not find it credible that the respondent Government would be ignorant of the detail of the events at Ilovaisk, not least because they occurred shortly before the Minsk negotiations in early September 2014 in which Russia played a central role (see paragraph 74 above). While national security concerns may be relevant in respect of some of the information sought, where they have been invoked by the respondent Government they have been deployed with a broad brush to justify a refusal to provide information and material which was necessary to assist the Court. There has been no attempt to engage with the Court with a view to finding a suitable manner of providing the information sought while protecting any justified national security concerns (see Georgia v. Russia (II) , cited above, § 345).

458 . The Court underlines the special relationship that the respondent State enjoyed with the separatist entities at the relevant time, as evidenced by its involvement in the ceasefire discussions, by the participation of members of its military in the Joint Center for Control and Coordination, by the humanitarian aid it has allegedly supplied, by the recognition of identity and other official documents issued by the “DPR” and “LPR”, by the links between Russia and a number of prominent separatists and by the comments made by separatist leaders (see paragraphs 74, 77, 89 and 97-131 above and A 36-38, 110-15, 2079, 2549, 2551, 2554-57, 2560-64, 2568-69, 2571-72, 2574, 2577-83, 2586-87, 2589, 2593-95, 2598-99 and 2610). By virtue of this special relationship alone, the respondent Government could have obtained material which would have been of substantial assistance to the Court in resolving the matters it is asked to address. However, no material from the separatist entities has been provided.

459 . The Court finds that the approach taken by the respondent Government does not represent a constructive engagement with the Court’s requests for information or, more generally, with the proceedings for the examination of the case. It considers that the respondent Government have fallen short of their obligation to furnish all necessary facilities to the Court in its task of establishing the facts of the case, as required under Article 38 of the Convention and Rule 44A of the Rules of Court. It will therefore draw all the inferences that it deems relevant (see paragraphs 435-439 above).

(b) How the principal evidence in the case-file should be viewed

460. The Court considers it helpful to set out at this stage its general views as to how it ought to approach the main categories of evidence in the case ‑ file.

(i) Reports of the OSCE and the OHCHR

461. The respondent Government have criticised the reports of the OHCHR in general, referring to “compromising connections and funding” (see paragraph 414 above). However, they have not identified any particular comments in specific reports which they consider to be untrue or misleading, far less presented any evidence to support such a contention and elucidate what they claim to be the true position. Nor have they indicated whether there are parts of these reports which they consider to be accurate, although they have in some instances cited extracts of reports to counter the allegations of the applicant Ukrainian Government. Their criticisms are broad and of a very general nature. They do not appear to challenge the reliability of the OSCE reports.

462 . The Court underlines that the reports of the OHCHR and the OSCE are based, inter alia , on the direct observations of fact-finding missions in situ in Ukraine, including in the Donetsk and Luhansk regions (A 131-34). They also rely on site visits, interviews with local authorities and eye-witness accounts. According to the methodologies set out, the information they contain has, where possible, been subject to verification and validation. Where information has not been authenticated, this is clarified in the reports themselves. There can therefore be no doubt that the objective factual reporting contained in the reports by the OHCHR and the OSCE, based on identified and credible sources of information, carries significant weight. Moreover, widespread reports of allegations of violations of the Convention are in themselves elements which can be taken into account when determining whether there is sufficiently substantiated prima facie evidence of them. It is not, however, necessary for the Court to reach a final conclusion on the argument of the respondent Government regarding the standard of proof applied by the OHCHR to reach particular conclusions, since the Court will reach its own conclusions, applying its own standard of proof, by reference to the objective facts reported rather than adopting the conclusions reached by the OHCHR.

(ii) Material from the OM and the JIT

463. The respondent Government have advanced some general criticisms as to the OM and JIT evidence (see paragraphs 409, 413 and 415 above). The Court does not accept the validity of these criticisms.

464 . First, there is no evidence that the JIT has relied upon outside bodies, including Bellingcat, in its analysis of the material and the preparation of the criminal case-file. Rather, it is absolutely clear from the submissions that the JIT has conducted its own analysis in respect of all the evidence in the criminal case-file, including issues discussed in Bellingcat reports and the matters covered by the DSB report. There is no basis whatsoever for suggesting that the OM and JIT material has not been independently gathered and authenticated. The fact that their conclusions are consistent with those of the DSB and Bellingcat merely demonstrates that there is corroboration of the conclusions reached and serves to further enhance the credibility and reliability of the findings.

465 . Second, the respondent Government have not provided to the Court any persuasive evidence for their generalised allegations that the intercept material in the case-file, consisting of transcripts of a number of intercepted conversations, has been manipulated. They have submitted one report containing an analysis of the authenticity of videos relating to telephone calls intercepted shortly after the downing of flight MH17 (A 2041-43). They further alleged that the SBU had initially published manipulated intercept material, deliberately omitting a reference to a Sukhoi fighter jet (often referred to as a “sushka”) and that this manipulation had only come to light once the full recording had been made available (see paragraph 413 above). The Court observes that the intercept material in the case-file has been provided by the applicant Dutch Government and comes from the OM, and not the SBU. The criticism concerning the alleged partial publication of material by the SBU is therefore not pertinent to the material provided by the applicant Dutch Government, which the respondent Government do not suggest reflects anything other than the full version of the relevant comments in the telephone call in question. The Court observes in this respect that the version of the transcript in the case ‑ file refers to the “sushka” (A 1585).

466. Moreover, while it appears to be correct that the SBU was the initial source for the intercept evidence, it is clear that the OM has itself authenticated and verified the disclosed material and has investigated criticisms of the intercept evidence of which it became aware. It thereafter prepared a technical report in the context of the criminal proceedings which formed the basis for oral submissions to the first instance court (see A 1498 ‑ 513 and 1695-98). The OM explained that while the first selection of telecoms data had been carried out by the SBU by listening to all intercepted telephone calls which might have been of relevance to the downing of flight MH17, as the JIT investigation gathered momentum the investigation of telecom data had increasingly been a concerted effort by investigators from different countries . The OM went into detail about the steps taken to validate the telecoms data. For example, in cases involving participants with foreign telephone numbers, the JIT obtained the relevant data from the foreign providers and found that it matched the material provided by the SBU in terms of dates, times and telephone numbers. The OM referred to articles and documentaries disseminated online which had prompted investigators to assess the extent to which claims made in them that intercepted calls had been manipulated could be investigated. It clarified that generalised allegations that all intercept data had been falsified could not be meaningfully investigated.

467 . The material published by the OM and the JIT, including the intercept material, has been collected, analysed and subjected to a rigorous validation procedure with a view to domestic criminal proceedings. As explained by the applicant Dutch Government, it has been prepared according to highest applicable legal standards, including evidentiary standards, to enable it to be admissible in the criminal courts of all States participating in the JIT. The Court therefore accepts that this evidence is both reliable and authentic. It is for any Government seeking to challenge a particular piece of evidence to show that it cannot be relied upon. This requires particularised argument as to its alleged flaws and the submission of convincing evidence supporting the criticisms made. No such particularised and substantiated challenge has been made in the present case.

(iii) The DSB report

468. The respondent Government challenged the findings of the DSB report and alleged irregularities in the way that the wreckage had been gathered and forensically assessed (see paragraph 415 above). The Court observes that a number of the allegations related to the respondent Government’s argument that the DSB had manipulated the evidence to support its conclusion that the aircraft had been penetrated from the outside. It is significant that the respondent Government have not, in the present proceedings, provided a definitive account of the circumstances that, in their view, led to the crash of flight MH17. The evidence in the case-file shows that they have, in the past, favoured the hypothesis of an air-to-air missile strike (A 1788 and 2029-30). The Court notes that this hypothesis also involves the external penetration of the aircraft. It is apparent from subsequent press conferences of the Russian Ministry of Defence (A 2031 ‑ 37) and the submissions of the Representative of the respondent Government during the hearing on admissibility (see paragraphs 368-369 above) that they now accept that flight MH17 was downed by a surface-to ‑ air missile. What is, however, contested is the assertion that the missile was supplied by or even came from the Russian Federation and that the launch site was in separatist-held territory. In view of this, and in the absence of an explanation from the respondent Government as to the continued significance of their arguments as regards the evidence of external penetration of the aircraft, the Court considers their challenges to the DSB report in this respect not to advance the case they have put before the Court.

469 . The respondent Government’s remaining allegations concerned the missile responsible and the location of its detonation in relation to the aircraft, from which the trajectory and possible launch area had been determined. The Court underlines that the DSB is an independent administrative body in the Netherlands and conducted its investigations into the downing of flight MH17 in implementation of the Netherlands’ obligation under Article 26 of the Chicago Convention (see paragraphs 334-335 above and A 45-46 and 1621 ‑ 1626), applying the binding standards and non-binding recommended practices for aircraft accidents and incident investigations set out in Annex 13 of that Convention. In addition to the investigators working for the DSB, six States, including the Russian Federation, participated in the investigation and appointed accredited representatives. The report was welcomed by the ICAO and no concerns whatsoever were raised by that organisation as to the conduct of the technical investigation or the content of the final report (A 1639-40). It is not for the Court to second-guess the conclusions reached in the DSB report, based on the technical data and expert knowledge available to that body. The respondent Government have not presented anything approaching adequate evidence to establish that the conclusions in question reached by the DSB were arbitrary or manifestly unreasonable and are, as appears to be alleged, the product of an international conspiracy resulting in a manipulated report. While they have contested certain aspects of the DSB’s conclusions, they have not presented a detailed account of what they contend to be the true version of events that approaches the level of precision provided by the DSB. The conclusions in the DSB report are, moreover, entirely consistent with the findings of the JIT investigation, which conducted its own forensic testing of the wreckage and carried out a thorough investigation into the origin of the missile and the launch site which went far beyond the technical investigation undertaken by the DSB.

470 . For these reasons, the Court finds that the DSB report is authoritative in so far as the facts concerning the technical cause for the crash of flight MH17 are in dispute.

(iv) Reports by NGOs and research collectives

471. There are numerous reports by NGOs and research collectives covering the events in the Donetsk and Luhansk regions since 2014. These are generally the subject of criticism by the respondent Government (see paragraphs 410-412 above ).

472 . NGO and research collective reports are undoubtedly elements which can be taken into account by the Court. Where it is satisfied as to the experience and reputation of report authors and the credibility of the sources of the information in the reports, the Court may choose to accord them substantial weight. Having regard to their backgrounds and to the methodologies presented in the reports summarised in the Annex (A 2108 ‑ 548), the Court is of the view that the authors of those reports, which include the Atlantic Council, Bellingcat, and InformNapalm, are credible and serious. There are, therefore, no grounds upon which to reject the evidence of these reports as a category of evidence.

473. As regards the respondent Government’s particular criticisms of specific Bellingcat or InformNapalm reports, the Court will have regard to them if and when it seeks to place weight on the reports in question. It does not accept that these criticisms show any general tendency to manipulate evidence or any general flaws in the analysis or approach taken by the authors of the reports. As regards the Tarasov report for example (see paragraph 411 above and A 2044-47), the Court observes, first, that it concerned the geolocation of the soldier and was not presented as evidence that the Russian forces removed identifying numbers from equipment (A 2399). Second, Mr Higgins’ statement (A 2063-67) provides a convincing explanation of why there were two photographs, one with numbers and one without. The respondent Government did not engage with the explanation he gave. As for the remainder of the photograph, the respondent Government referred only to indications of “potential” fakery. This falls quite significantly short of establishing that the photograph has been fabricated. Moreover, the respondent Government did not comment on whether Mr Tarasov was, as alleged, a Russian soldier present in Pavlovka, Russia, in the summer of 2014. They alone had access to primary evidence, in the form of military records, capable of confirming or refuting the report’s conclusion to this effect.

474. The Court furthermore observes that the videos and images analysed in reports which concern the downing of flight MH17 have often been verified and validated by the JIT investigation. Only particularised arguments and convincing evidence could lead the Court to examine itself whether such evidence is, in fact, reliable and authentic (see paragraph 467 above). It is also noteworthy that the Bellingcat and InformNapalm reports are largely consistent with the later conclusions of the JIT which, as noted above, reached its conclusions on the basis of its own methodologies and analysis. As noted above (see paragraph 464), the consistency of the JIT’s conclusions with the findings of the research collectives would tend to lend support to the credibility of these findings and the methodologies followed.

475 . As regards the RUSI report to which the respondent Government have referred (see paragraph 412 above), the Court notes that the report set out in detail the reasons for which its authors concluded that the leaked emails linked to Mr Surkov were genuine (A 2336-38). It explained, for instance, that the volume of emails leaked was significant and that forging this amount of data was “practically unfeasible”. It also pointed out that the database of emails “overwhelmingly” comprised daily brief and media-monitoring summaries with only a “modest” amount of revelatory information. It moreover referred to confirmation from some of those whose email correspondence had been leaked that the emails attributed to them were genuine and to the conclusion of the Atlantic Council’s Digital Forensic Research Lab that the headers of emails analysed appeared to be authentic and would be difficult to forge in such quantities. The respondent Government’s general allegations as to the authenticity of the emails do not engage with these specific reasons for concluding that they were authentic. The Court considers that the steps taken to validate the emails were serious and credible. The respondent Government’s objection comes down, essentially, to the single, unsubstantiated assertion that Mr Surkov did not use email. In these circumstances, the Court is persuaded that the details of emails to which the report refers may be relied upon.

476. The Court will take into account any additional, specific criticisms of particular findings as appropriate. Again, what is of particular interest and relevance in all of these reports is their objective factual reporting, rather than their general conclusions, since the Court will reach its own conclusions based on the facts before it.

(v) Government reports and intelligence

477. The applicant Ukrainian Government have submitted a great deal of material produced by their Government officials and agencies containing detailed and lengthy information in support of their allegations. The Court is persuaded that this official material constitutes a valid means by which the factual picture may be clarified in a case of this nature and is therefore an element which the Court will take into account. As outlined above (see paragraph 446), it must be approached with some caution given that it would likely be in favour of the applicant Ukrainian Government’s case. The Court will therefore have regard to the extent to which the material is consistent with the other evidential elements in the case. The Court has already explained that it is prepared to draw appropriate inferences from the respondent Government’s failure to provide relevant information and evidence capable of refuting or corroborating extensive and specific factual allegations made by the applicant Governments (see paragraph 459 above).

(vi) Witness statements

478. Witness statements have been provided from individuals in relevant areas of eastern Ukraine and from Russian and Ukrainian soldiers involved in the hostilities there. The Court also has indirect witness testimony via the material provided in respect of the trial in The Hague of four individuals suspected of playing a role in the downing of flight MH17.

479. Where statements have been provided by witnesses whose evidence appears on its face to be truthful and credible, even if entirely untested, they may play an important role in evaluating, at this admissibility stage, whether a prima facie case of alleged violations has been established. That said, statements from untested witnesses should be treated with a greater degree of caution in so far as they are relied on in the context of the establishment of Article 1 jurisdiction beyond reasonable doubt, although they may constitute one of the elements to which the Court may have regard when determining whether it is justified to shift the burden of proof or draw inferences (see paragraph 436 above). Greater reliance may in this context be placed on the evidence of witnesses who have been examined by the examining magistrate in the context of the criminal proceedings before the first instance court in The Hague.

(vii) Interviews and press conferences

480. The President of the Russian Federation, other representatives of the respondent Government and a number of prominent separatists operating in eastern Ukraine have given interviews or made statements relevant to the issues contested in this case. Such interviews constitute elements which the Court will take into account, with due regard to any arguments as to their truthfulness and any inconsistencies between the statements made in interview and other evidence in the case-file. As noted above, statements by the President and Government of the respondent State which support the position adopted by the latter in the present proceedings should be treated with some caution; however, where their statements acknowledge facts or conduct that place the authorities in an unfavourable light, the Court may construe them as a form of admission (see paragraph 446 above). In view of the special relationship that the respondent State has enjoyed with the separatist entities since the outset (see paragraph 458 above), and the consequent evident interest of the latter in supporting the position of the Russian Federation, the Court will apply similar considerations to statements made by prominent separatists.

(viii) Media reports

481. A number of media articles have been submitted as evidence in the present case. Such articles cannot by themselves be seen as proof in respect of the parties’ positions but may be taken into account as relevant elements which are consistent with or contradict the other evidence in the case. Articles which fall into the category of investigative journalism and are thus based on first-hand research which is documented to a sufficient extent may merit particular attention. Again, the Court will reach its own conclusions by reference to the first-hand research reported in the articles rather than accepting at face value the conclusions reached therein.

482. The respondent Government contended that the applications were not “genuine applications” under Article 33 of the Convention. They claimed that they amounted to a bad faith abuse of process.

483. They argued that a genuine inter-State application under Article 33 had to be brought in good faith for a proper human rights purpose. This derived from the duty to cooperate with the Court in Article 38 of the Convention and Rule 44A of the Rules of Court, and from the fundamental principles of international law, of which the good faith principle was one. The application concerning the general situation in eastern Ukraine was not a genuine application brought in good faith. It amounted to political propaganda based on false evidence of Russian involvement and ought therefore to be rejected as an abuse of the right to apply (citing Jian v. Romania (dec.), no. 46640/99, 30 March 2004). Similarly, the applicant Dutch Government had relied on false evidence and sham investigations in their application about the downing of flight MH17.

484. The applicant Ukrainian Government had shown contempt for the obligations they invoked because their own evidence showed that they had been involved in the indiscriminate shelling of citizens. Under international law, a State which was guilty of illegal conduct could be deprived of standing in respect of complaints of corresponding illegalities by other States. The respondent Government pointed in support to the case of McCann and Others v. the United Kingdom (27 September 1995, § 219, Series A no. 324), where, they claimed, this Court refused relief to alleged victims engaged in an aggressive enterprise contrary to the human rights of others.

485 . Moreover, the applicant Ukrainian Government had interfered with the proper administration of justice because, notwithstanding their denials, they were involved with the Myrotvorets website. The website, which appeared to be hosted in San Francisco, was supported by the applicant Ukrainian Government and had direct links to the SBU. The respondent Government provided evidence to show support for the website from Anton Gerashchenko, at the time an adviser to Ukraine’s Interior Minister, who subsequently became Deputy Minister of Internal Affairs. They claimed that the website was notorious for listing journalists and others who expressed views or provided evidence inconsistent with the orthodoxy demanded by the Ukrainian authorities. The consequences of listing could be serious: a former parliamentarian and a journalist had been murdered shortly after their listing in 2015. The site had listed the Representative and counsel of the respondent Government, as well as one of their expert witnesses, Mr Rosen, shortly after the hearing in Ukraine v. Russia ( re Crimea) in September 2019. The applicant Ukrainian Government clearly had the power to close down the website if they wished but had not done so. The listing of Mr Rosen had undermined the willingness of some experts to assist and participate in proceedings, which had fundamentally damaged fairness, natural justice and equality of arms.

486. The respondent Government further claimed that Russian law firm, Ivanyan & Partners, which instructed Russia’s counsel and experts in the present proceedings, had been subjected to hacking attacks and that Bellingcat, which supported both applicant Governments, was in possession of the hacked material. This further supported their allegations of abuse of process.

487. As regards the application concerning the alleged abduction and transfer to Russia of groups of children and accompanying adults, the allegations were false and baseless propaganda. It was clear from the evidence that the children had been fleeing a dire situation created by Ukraine’s armed forces. The failure of Ukraine to adduce proper evidence over six years carried the implication that it had none. The application was therefore a bad faith abuse of the process of the Court and was also not a genuine allegation as required by Article 33 of the Convention.

488. The applicant Ukrainian Government accepted that an application could be declared inadmissible if it was lacking the requirements of a genuine allegation in the sense of Article 33 of the Convention. However, the necessary evidentiary threshold had plainly been surmounted in the present case. They refuted allegations of fabricated evidence advanced by the respondent Government.

489. It had also long been settled that the issue of alleged political motivation was not relevant to admissibility in the context of inter-State proceedings. The application concerning the general situation in eastern Ukraine had been brought to vindicate the human rights of certain sections of its population.

490. Finally, the applicant Ukrainian Government refuted any suggestion of their involvement in the Myrotvorets website. The respondent Government had not asserted tangible prejudice to Mr Rosen and the allegation that unnamed experts had been deterred from assisting the respondent Government in these proceedings was unsupported by any evidence. In any event, appropriate arrangements could be made to safeguard the identity of any witness who had a well-founded fear of reprisal.

491. The applicant Dutch Government insisted that the evidence presented was authentic and reliable. All evidence collected in the context of the criminal investigation had been carefully verified.

492. In relation to individual applications, Article 35 § 3 (a) allows the Court to declare inadmissible an application lodged under Article 34 on the ground that it constitutes an abuse of the right of individual application. There is no such provision in respect of inter-State applications lodged under Article 33 of the Convention. No general, and in the absence of an express provision, necessarily implied, good faith requirement for the admissibility of inter-State applications has been identified under the Convention or under general public international law beyond the existing criterion already set out in the Court’s case-law that such application must not be “lacking the requirements of a genuine allegation” (see Ukraine v. Russia ( re Crimea) , cited above, § 269). The Court does not consider there to be any basis for now introducing such a requirement.

493. It therefore falls to be examined whether the applications fall foul of the criterion that an application must not be “lacking the requirements of a genuine allegation”, by reference to the objections made by the respondent Government. These objections may be summarised as follows: (1) that the applications lodged by the applicant Ukrainian Government amounted to political propaganda; (2) that false evidence had knowingly been presented to the Court, in particular in respect of the allegations concerning flight MH17; (3) that Ukraine had shown contempt for the Convention obligations it invoked; (4) that the applicant Ukrainian Government were involved in the activities of the Myrotvorets website; and (5) that lawyers acting for the respondent Government had been subjected to hacking attacks.

494. In its decision in Ukraine v. Russia ( re Crimea) (cited above, § 271), the Court explained that in considering whether an application is lacking the requirements of a genuine allegation, it would take account of the nature of the issues raised before it by the applicant Government. It continued:

“ ... Having regard to the scope of the case as defined above, the Court considers that those issues are indeed legal ones, since the Court is asked to rule on whether in Crimea the respondent State complied with any obligation it may have had under Article 1 to secure the rights and freedoms defined in the Convention (and the Protocols thereto) to everyone within its jurisdiction, provided that such jurisdiction is established. That preliminary issue of whether, at any relevant time, the respondent State exercised jurisdiction over Crimea within the meaning of Article 1 is closely linked to the object of the case as defined above and is likewise of a legal nature.

272. The Court is mindful that these questions inevitably have political aspects. However, that fact alone does not suffice to deprive them of their character as legal questions. Indeed, the Court has never refused to decide a case brought before it merely because it had political implications. Any such implications in the present case cannot deprive the Court of the competence expressly conferred on it under Article 19 of the Convention. Judicial adjudication on those issues is entirely consonant with its competence under that Article to ensure the observance of the engagements undertaken by the respondent State in the Convention and the Protocols thereto.

273. Furthermore, the political nature of any motives which might have inspired the applicant Government to submit the application and the political implications that the Court’s ruling might have are of no relevance in the establishment of its jurisdiction to adjudicate the legal issues submitted before it ...”

495. The Court considers that, as in that case, the issue before it in the present case, seen in the context of the scope of the case and the nature of the issues raised, is a legal one. The Court is asked to rule on whether the respondent State has complied with whatever obligations it may have had under Article 1 of the Convention in respect of various events in the relevant parts of Donbass. While this question may have political aspects, this does not deprive the issues concerned of their legal character.

496. The Court does not consider that there is any evidence before it to support the argument that either of the applicant Governments have knowingly presented false evidence in the present proceedings. It has already explained (see paragraph 467 above) that it considers the evidence gathered and published in the context of the criminal investigation by the JIT and the OM to be authentic and reliable. It has further indicated that there is no evidence that the conclusions of the DSB were manipulated as part of an international conspiracy, as alleged by the respondent State (see paragraph 469 above).

497. The Court emphasises that the substance of the present applications requires it to confine its investigation essentially to acts and incidents during the relevant period (see paragraphs 392-393 above) for which Russia, as a High Contracting Party, might be held responsible. Alleged violations of the Convention by Ukraine are not before the Court in these proceedings and therefore cannot be taken into account here (see paragraph 395 above and Cyprus v. Turkey , nos. 6780/74 and 6950/75, Commission report of 10 July 1976, Vol. I, unreported, at p. 32, § 85). The Court observes that the respondent Government lodged, in July 2021, an application against Ukraine under Article 33 of the Convention in respect of events in eastern Ukraine (see paragraph 28 above), in which the matter of Ukraine’s respect for its obligations under the Convention may well have to be determined.

498. The Court considers that as far as Ukraine’s involvement in or control over the Myrotvorets website (A 2619) is concerned, the case of the respondent Government amounts to no more than vague and unsubstantiated allegations. On their own admission, the site is hosted in the United States and there is nothing approaching compelling evidence of possible Ukrainian State involvement or control. The respondent Government have at most shown that a senior figure in the Ukrainian Government personally supported the website prior to his appointment as Deputy Minister of Internal Affairs. This falls far short of making out an allegation of control over or support for the website and its activities by the applicant Ukrainian Government.

499. Moreover, and in any case, the respondent Government have provided no evidence to the Court to show that listing on the Myrotvorets website actually entails a risk to life or limb, beyond the threats made on the website. They have consistently and exclusively referred to two killings which occurred in spring 2015, allegedly shortly after the victims had been listed on the Myrotvorets website. No details of the alleged 2015 killings have been provided and no evidence or explanation of the causal link between listing and the killings has been advanced. No further assaults or killings have been alleged, notwithstanding the fact that thousands of people have been listed on the website since 2015. Although the respondent Government have had ample opportunity to provide more details of the risks said to be faced by those listed since first making their allegation in September 2019, they have failed to do so. In short, the allegation comes down to two vague and unexplained instances which occurred eight years ago where persons listed were killed by, at least as far as the Court is aware, unknown perpetrators for unknown reasons.

500. Finally, there is no evidence that any witnesses in these proceedings have in fact been intimidated as a consequence of the listing of Russia’s counsel, Representative or expert. The respondent Government have referred to witnesses refusing to assist or to be named but have provided no evidence at all to substantiate this claim, whether by way of witness statements from potential expert witnesses, anonymous or otherwise, expressing their fears or a statement from Mr Rosen, the expert witness of the respondent Government who was listed on the website, or one of the other named witnesses upon whom they relied.

501. The Court notes that Ivanyan & Partners have never been on record as acting for the respondent Government in the present proceedings. In any event, there is no suggestion or evidence that the applicant Governments are in any way responsible for these alleged cyber-attacks.

502. In conclusion, none of the respondent Government’s submissions are capable of substantiating their objection that the applications are lacking the requirements of a genuine allegation under Article 33 of the Convention. The respondent Government’s objection under this head is accordingly dismissed.

503. The English term “jurisdiction”, in the context of the Convention, refers to two separate, but related, matters.

504. The first is the Court’s own jurisdiction pursuant in particular to Articles 19 and 32 of the Convention (or “ compétence ” in French) to receive an application and to determine it. This requires, for example, examination of its ratione personae jurisdiction (for example whether, in the context of an individual application, an applicant may be considered a “victim” for the purpose of Article 34) and its ratione materiae jurisdiction (for example whether the right relied upon is protected by the Convention and the Protocols thereto and the matters complained of fall within their scope). The Court has consistently underlined that it must satisfy itself that it has jurisdiction in any case brought before it and is therefore obliged to examine the question of its jurisdiction at every stage of the proceedings (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006 ‑ III).

505. The second concerns the jurisdiction of the High Contracting Parties, since their Article 1 obligation requires them to secure Convention rights and freedoms to “everyone within their jurisdiction”.

506. In order for an alleged violation to fall within the Court’s Article 19 jurisdiction to “ensure the observance of the engagements undertaken by the High Contracting Parties”, it must first be shown to fall under the Article 1 jurisdiction of a High Contracting Party. It is for this reason that the Court has described Article 1 jurisdiction as a threshold criterion (see Ilaşcu and Others , cited above, § 311; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, ECHR 2011; and, most recently, Georgia v. Russia (II) , cited above, § 129). In its recent decision in Ukraine v. Russia ( re Crimea ) (cited above, § 264), it explained that the question whether the case fell within the jurisdiction of the respondent State was a preliminary issue to be determined before any assessment of the merits of the substantive allegations could take place.

507 . Establishing the existence of Article 1 jurisdiction is not necessarily determined by the merits of the case, and it is not therefore necessarily to be left to be determined at the merits stage of the proceedings. There is nothing to prevent the Court from establishing already at this preliminary (admissibility) stage whether the matters complained of by the applicant Governments fall within the jurisdiction of the respondent Government (see Ukraine v. Russia ( re Crimea ), cited above, §§ 264-65 and 303 et seq. ).

(a) The respondent Government

508. The respondent Government opposed what it considered the Court’s expansion of the concept of jurisdiction to cover territory outside the geographical borders of a Contracting State on the basis of “effective control”. They argued that this development was not in line with the Vienna Convention on the Law of Treaties or the intentions of the drafters of the European Convention on Human Rights. “Jurisdiction” ordinarily meant sovereign jurisdiction, since a State’s obligations could only be met using sovereign powers. The Convention had been developed to deal with the domestic affairs of States, in tandem with the separate development of the Geneva Conventions dealing with conflict. Without making reference to Articles 15 and 56 of the Convention, the respondent Government asserted that the Convention contained a provision for derogation in the context of conflict and allowed States to decide whether it should apply in foreign dependent territories that they controlled. This latter provision was totally inconsistent with the Court’s imposition of the Convention in relation to territory outside their national territory.

509. The concept of “living instrument” should not be applied to extend the Convention’s reach into areas governed by international humanitarian law. The general position of States had been averse to such a development: they had resisted attempts to extend the Convention to such areas and had not lodged derogations under Article 15 in respect of areas outside their territories that might be under their control. Moreover, manuals for forces operating abroad were based on international humanitarian law. The Court’s expansion of jurisdiction beyond a State’s borders was illegitimate.

510. In any case, even on a most generous reading of the Court’s case ‑ law, the suggestion that the Russian Federation had effective control over relevant parts of eastern Ukraine was unsustainable. There was no plausible prima facie evidence of any Russian invasion during the relevant period, which if proved might have been sufficient to show effective control under the Court’s case-law. Although ten soldiers of the Russian 331st Guards Airborne Regiment had been captured in Ukraine, they had crossed the border by mistake. As regards alleged control via cross-border shelling by Russian Federation troops, such shelling was denied. In any case, Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001-XII) had clearly established that the firing of weapons did not establish control where they landed for the purposes of making that area subject to the jurisdiction of the firing State.

511 . The applicant Ukrainian Government had further failed to show any alleged control via agents in the “DPR” and “LPR”. The senior figures in the administration had not been shown to be Russian State agents. The perpetrators of specific acts (variously “Russian armed groups”, “armed groups”, “Russian militants”, “pro-Russian militants”, “representatives of LPR” etc.) had also not been demonstrated to be State agents of the Russian Federation. The “high point” of Ukraine’s case was to point to the role of Mr Girkin, a Russian national, but “whilst he is referred to in press reports as having belonged, once, to Russia’s security services, he is described consistently as retired”. He was not a State agent of the Russian Federation. It was inevitable that Ukraine’s outrageous violence against Russian speakers in eastern Ukraine had prompted sympathy from the Russian people. There was “no doubt” that some had been prompted to help in various ways and “[w]ithout doubt some Russians have gone to fight in Ukraine, along with concerned and motivated people from a range of countries”. This did not, however, entail State control of eastern Ukraine by the Russian Federation.

512. In so far as the applicant Ukrainian Government sought to rely on Ilaşcu and Others (cited above) to support an argument of control via support for the “DPR” and “LPR”, this argument was also flawed. First, this jurisdictional ground lay at the very extreme of the Court’s “expansionist approach”. Second, a broad interpretation of Ilaşcu and Others would depart from common sense and practical reality. Support given to a separatist administration did not, as a matter of fact, necessarily carry actual control. Third, a wide application of Ilaşcu and Others would have no moral authority since it could extend to an outside State providing humanitarian support, which was the respondent Government’s position as to their engagement in eastern Ukraine. It would be absurd and antithetical to everything that the Convention stood for to impose liability on an outside State for provision of necessary humanitarian support. This was especially so here when the humanitarian aid went to ordinary people and not to any administration.

513. In any case, the IlaÅŸcu and Others principle was inapplicable on the present facts. As IlaÅŸcu and Others explained, establishing jurisdiction on the basis of support to a subordinate administration depended on the latter thus being assisted to survive and to resist the efforts of a de jure government and the international community to restore the rule of law and democratic values. This did not apply to eastern Ukraine since the new authorities installed in Ukraine in 2014 were neither de jure nor constitutional, they were not democratic and they were not trying to restore the rule of law or democratic values. There had been no lawful change of government and the new government was therefore unconstitutional, and widely regarded as such in eastern Ukraine.

514 . Even where it applied, the Ilaşcu and Others principle merely created a fiction of effective control; it could not create a fiction of attribution and State responsibility. Public international law, in the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001 (“ARSIWA”) and ICJ case-law, set out clear conditions for State responsibility to arise. These conditions had not been met here. In particular, the starting principle was one of non-attribution, with exceptions to that principle being outlined in the ARSIWA. The applicant Ukrainian Government had failed to show that any of the exceptions were satisfied on the facts of the case. There was therefore no scope for the Court to find attribution based on support. Russia could not be held accountable for acts of third parties or the subordinate administrations in eastern Ukraine.

515. Moreover, the actual evidence showed that the separatists had no central control themselves. The OHCHR report of 15 June 2014 noted that some of the armed groups operating in the regions had “reportedly slipped out of the control and influence of the self-proclaimed republics and their leaders”, for example “in the area surrounding the town of Horlivka (reportedly under the control of an armed group led by Igor Bezler)”.

516. In their first-stage memorial, submitted after the delivery of the Court’s judgment in Georgia v. Russia (II) (cited above), the respondent Government argued that the findings in that judgment as regards jurisdiction during the active phase of hostilities applied to the present applications in respect of complaints about military attacks. The judgment excluded the “complaints concerning MH17 and all allegations of Ukraine concerning shelling”.

517 . They argued that this was a civil war with defined sides and front lines that were moving all the time. The fluidity of the situation was such that no maps were authoritative. This fluidity was illustrated by the maps prepared in the context of Ukraine’s own ATO and a video of them over time and by BBC maps showing very considerable changes over a span of months. The areas affected included the alleged firing position of the Buk missile which had allegedly downed flight MH17 and the crash site close by. Even if, which was denied, the separatists were to be regarded as Russian agents or the alleged Buk had had a Russian crew, control over the whole area had been contested and fluid. The situation on the ground in the area where the Buk missile had allegedly been fired had been “very obviously contested” and the airspace above it had also clearly been a “contested war zone”. For this reason, it was impossible to suggest that Russia had had effective control over the area where MH17 was destroyed. The events in the active conflict – including the downing of flight MH17 – were “shrouded in the fog of war”. Generally in these circumstances fact-finding was virtually impossible. The confusion about what side controlled what territory was reflected in Ukraine’s own application: it had “repeatedly” alleged abuses in areas that it claimed to have controlled, at the material times, in its ATO maps.

518. The respondent Government explicitly addressed the HRLC’s submissions in this respect (see paragraphs 539-546 below). They considered that using the personal, and not the spatial, conception of jurisdiction to say that the shooting down of flight MH17 was an exercise of physical power over the individuals onboard for the purpose of Article 1 jurisdiction was inconsistent with the Convention and ignored the result and reasoning in Georgia v. Russia (II) (cited above). The firing of weapons indicated an absence of control over those injured by the weapons and the space they occupied. Weapons were fired to gain control of space or to kill the enemy, not because control existed. To take any other view would be to bring all conflict within the purview of the Court if a civilian (or perhaps even a soldier) were hit. Applying the Convention to conflict would stretch it, irreconcilably, into the legal space governed by the very different rules of international humanitarian law, which were outside the substantive jurisdiction of the Court. It would compromise legal clarity in both spheres and introduce compulsory jurisdiction in relation to international humanitarian law where States had not agreed that any tribunal had compulsory jurisdiction. It would also take this Court into huge uncertainty on the facts. In any case, the applicant Ukrainian Government had completely failed to put forward any basis for considering all members of the “DPR” and the “LPR” to be State agents for the purposes of control.

519. As already explained (see paragraphs 408-415 above), the respondent Government also contested the authenticity and reliability of the evidence relied upon by the applicant States to show jurisdiction.

(b) The applicant Ukrainian Government

520. The applicant Ukrainian Government argued that jurisdiction existed on the basis of both the principle of effective control of territory (directly and through subordinate local forces) and the principle of State agent authority and control over the victims of the violations committed against people deprived of their liberty. The evidence demonstrated beyond any doubt that the Russian Federation had effectively instigated the conflict and had, throughout, supported the pro-Russian armed groups by supplying (and facilitating the supply of) funds, weapons, ammunition, “volunteers” and mercenaries and by providing direct military and political support for the separatist forces and their “administrative” entities. The vast majority of Convention violations alleged in the present applications had occurred in territory controlled at the relevant time by the “DPR” and “LPR”, and their associated paramilitary formations, with the direct intervention and participation of Russian armed forces on the ground in eastern Ukraine during phases of the conflict.

521. In their initial memorial, the applicant Ukrainian Government argued that the evidence clearly demonstrated that Russia’s subordinate local administration and its paramilitary forces had been in effective control of the relevant parts of Donbass from early March 2014. It was true that the precise boundaries of the territory being occupied had seen some fluctuations from time to time as the ATO had succeeded in regaining control of certain areas for certain periods. However, the overall picture was clear: with Russian backing, the separatist entities had been in effective control of the relevant territory in the Donetsk and Luhansk regions since April 2014. In his oral submissions, counsel for the applicant Ukrainian Government clarified that their position was that the Russian Federation had established effective control over “occupied Donbass” in April 2014 and had exercised Article 1 jurisdiction over this area since at the very latest the end of April 2014. Their position was that this remained the case as at the date of the oral hearing. While there had been moments of intense fighting, such as the battle of Ilovaisk, these had occurred within territory that had previously been under Russian separatist occupation. The situation was therefore entirely different from that pertaining in respect of the active phase of hostilities in Georgia v. Russia (II) , where it had been impossible for the Court to determine which side had been in “effective control” during the period of active fighting. It was, however, closely analogous to the situation that persisted during the occupation phase examined in that case, in respect of which the Court had found Russia and its subordinate local forces to have established effective territorial control over the area concerned.

522. The evidence also demonstrated “beyond a shadow of a doubt” that during the relevant period the separatist entities were operating under the decisive influence, operative direction and military support of the Russian Federation. The evidence clearly established that the “DPR”, the “LPR” and the various paramilitary and “administrative” entities operating in eastern Ukraine were proxies of the Russian Federation. They depended entirely on Russia for funding, which had initially been provided by individuals close to the President and was later provided directly from State funds. They depended upon Russia for military and political support, through the infiltration of Russian special forces operatives who had instigated the armed rebellion in the first place; through the steady cross-border supply of heavy weapons emanating from the Russian armed forces; through the recruitment, training and transfer of “volunteers” and mercenaries; through the selection, appointment, operational direction and dismissal of the political and military leadership of the armed groups and “administrative entities” of Donetsk and Luhansk; through the conduct of cross-border artillery attacks on Ukrainian forces to support the armed groups; through direct land invasion of the sovereign territory of Ukraine by the conventional forces of the Russian army in support of the armed groups; and through the central coordination of the pro-Russian forces throughout the entire conflict. Many of the key Russian military and political leaders involved in the coup in Crimea and the subsequent occupation had moved immediately on to become part of the “institutions” of the “DPR” and the “LPR”. Mr Girkin had been directly involved in the seizure of the Crimean Parliament building on 27 February 2014, had negotiated with the headquarters of the Ukrainian navy and had coordinated the actions of the so-called Crimea “self-defence units”; and Mr Borodai had worked as an advisor to Mr Aksyonov after the latter had become “Prime Minister” of Crimea on 27 February 2014.

523. According to the Court’s case-law, where a Contracting Party had taken effective control of a portion of another State’s sovereign territory, it would be liable for the actions of its own agents and also for the actions of the agents of any subordinate local administration or paramilitary force which it had established or which depended for its existence and survival on the former State’s support. It was unnecessary to show that the occupying State actually exercised detailed control over the policies and actions of the authorities of the subordinate administration. Liability arose by virtue of the relationship of dependency between the subordinate local administration and the Contracting State.

524. The applicant Ukrainian Government referred to a 2015 report by the Atlantic Council which had reviewed satellite imagery and publicly available photographic evidence assessed with geolocation analysis by open-source researchers and had concluded that the war in eastern Ukraine was “a Kremlin-manufactured conflict”. The report had tracked the movement of soldiers and vehicles and cross-border shelling from Russia to Ukraine.

525. They also referred to a comprehensive list of reports prepared by Bellingcat, which had used photographs and videos posted to social media and modern geolocation analysis to pinpoint a number of cross-border supply routes used by the Russian armed forces to smuggle fighters, heavy weapons and ammunition into Ukraine.

526. The respondent Government’s attempts to change the Court’s approach to extraterritorial jurisdiction based on the public international law principles of State responsibility had already been roundly rejected by the Grand Chamber in Catan and Others v. the Republic of Moldova and Russia [GC] (nos. 43370/04 and 2 others, ECHR 2012 (extracts)).

527. As regards alleged jurisdiction on the basis of State agent authority and control, the applicant Ukrainian Government referred to the Court’s judgment in Al-Skeini and Others (cited above, §§ 134-36). A consistent and widespread practice of abductions, torture and murder of civilians, and torture and extrajudicial execution of Ukrainian service personnel who were prisoners of war or hors de combat , had been clearly established on the evidence. There were numerous records by the OHCHR and the OSCE attesting to this pattern of violations. These crimes had been perpetrated by Russian regular and proxy forces, acting separately or in conjunction with one another. All the perpetrators had been either agents or proxies of the Russian State for the purposes of the Convention.

528. In cases involving human rights violations of people taken captive, the victims had been under the complete physical control of the perpetrators at the time the violations had occurred. For this category of violations, it was immaterial whether the events had occurred in territory that was at the time under the effective control of the Russian Federation and its proxies, in contested territory or (exceptionally) in territory that was under Ukrainian Government control. In cases involving the principle of “State agent authority”, Article 1 jurisdiction was premised upon the physical control exercised by State agents over the victim’s person, rather than upon the overall control of the territory in which the violation occurred. Given the levels of essential military, economic and political support provided by the Russian Federation, agents of the various pro-Russian paramilitary formations were to be treated as Russian State agents for the purposes of Article 1 of the Convention.

529. At the admissibility stage, both of the bases of jurisdiction invoked required the Court to conduct a preliminary evaluation of the extent of Russian State involvement in, and responsibility for, the establishment and activities of the pro-Russian armed groups operating in eastern Ukraine. Such evaluation was sufficient to show that the acts complained of were capable of falling within Russian jurisdiction. Any more detailed examination of the basis for jurisdiction was to be reserved for the merits phase of the case (citing the Georgia v Russia (II) decision, cited above, §§ 66-68; see also paragraph 418 above).

530. Finally, the applicant Ukrainian Government confirmed that they adopted the submissions of the applicant Dutch Government in respect of jurisdiction and the steps taken to verify the evidence gathered in the context of the investigations into the downing of flight MH17.

(c) The applicant Dutch Government

531. The applicant Dutch Government considered that at the time of the downing of flight MH17, those on board had been within the jurisdiction of the Russian Federation. The Russian Federation had exercised effective control over the “DPR”, where the downing had taken place and had exercised jurisdiction through the use of force by its State agents.

532. As to the former, a group of separatists had secured an area that included Donetsk, Slovyansk and Hrabove by April 2014 and on 7 April the “DPR” had been proclaimed. Through the use of force, supported by the Russian Federation, the separatists had maintained their control, while establishing an administrative structure and providing the local population with economic support to ensure long-term control over the area. The separatists had been under the effective authority, or at the very least under the decisive influence, of the Russian Federation. There was compelling evidence that the Russian Federation had provided political, military and economic support to the separatists and later to the “DPR”, including through the deployment of members of the Russian armed forces, artillery support, influence over military strategy of the separatists and the training and equipping of separatists. This support had been crucial for the establishment and survival of the “DPR”. The evidence showed that the missile which downed flight MH17 had been launched from a Buk-TELAR in a field in “DPR” territory; and that the Buk-TELAR in question belonged to the 53rd AAMB of the Russian armed forces and had been transported by the Russian Federation from its territory to the separatist-controlled field in eastern Ukraine and then returned to the Russian Federation after the downing of the aircraft.

533. As to jurisdiction based on the use of force by State agents, the applicant Dutch Government referred to the provision of the Buk-TELAR together with a Russian crew, all from the 53rd AAMB based in Kursk, Russia. The vehicle, which had travelled as part of a large convoy, had been traced from its base on 23 June 2014 to the field in eastern Ukraine from which the missile had been launched on 17 July 2014. Given the knowledge and expertise required to launch a Buk missile (see paragraph 331 above), it was highly unlikely, if not impossible, that the separatists had managed to train someone to the required standard before the missile had been launched. The only logical conclusion was that the Buk-TELAR had been manned by members of the Russian armed forces and that the missile had been launched by or with the assistance of those individuals. Intercepted telephone calls referred to a Buk-TELAR arriving in Donetsk with a crew on the morning of 17 July.

534. This use of force by Russian State agents brought those onboard flight MH17 within the jurisdiction of the Russian Federation based on the Court’s case-law in Pad and Others v. Turkey ((dec.), no. 60167/00, § 54, 28 June 2007), Andreou v. Turkey ((dec.), no. 45653/99, 3 June 2008) and Solomou and Others v. Turkey (no. 36832/97, § 51, 24 June 2008).

535. The applicant Dutch Government addressed the Court’s judgment in Georgia v. Russia (II) , cited above, and in particular the distinction made there between military operations carried out during an “active phase of hostilities” on the one hand and the period following that phase on the other. In the present case there had been no “active phase of hostilities” in the sense of an “armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos” (referring to § 126 of the judgment). In the Court’s established case-law, the Convention had been applied to the use of force both territorially and extraterritorially in the event of armed clashes or the use of military force (citing, among other cases, Hassan v. the United Kingdom [GC], no. 29750/09, §§ 76-77, ECHR 2014; Al-Skeini and Others , cited above, § 23; Cyprus v. Turkey judgment, cited above, § 133; and Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, §§ 185-86, ECHR 2009). They concluded from this that the existence and prevalence of armed clashes and the use of military force did not by definition give rise to a “context of chaos” such as to prevent a State exercising Article 1 jurisdiction.

536. Moreover, the situation in eastern Ukraine on 17 July 2014 could not be compared to the situation in South Ossetia, Abkhazia and the “buffer zone” in Georgia between 8 and 12 August 2008. The Georgia v. Russia (II) judgment indicated that there had been a brief period of intense fighting in which the Russian Federation through military forces had captured areas in Georgia, with some armed clashes continuing after the ceasefire of 12 August. In eastern Ukraine, by contrast, there had been no such period of concentrated, intense fighting at the time of the downing of flight MH17. Control over the specific area concerned had already been established by the separatists before 17 July 2014. If, in eastern Ukraine, there was indeed a period that could be characterised as an “active phase of hostilities”, such phase would have been in the period preceding the unilateral ceasefire declared by Ukraine on 20 June 2014. That some armed clashes had continued to take place after the ceasefire did not call into question that conclusion.

537. Any other appraisal of the applicability of the Convention would seriously compromise its purpose and effectiveness. If Article 1 jurisdiction were to exist each time hostilities in an area died down and disappear every time they flared up again, this would lead to situations in which there would be jurisdiction one day and not the next, only to be present again the following day. It would create an unacceptable situation whereby Convention protection could be switched on and off. The matter of jurisdiction could not be approached in this way.

538. As regards the alleged violation of the respondent State’s procedural obligation under Article 2 of the Convention, the applicant Dutch Government invoked “special features”, within the meaning of Güzelyurtlu and Others v. Cyprus and Turkey ([GC] no. 36925/07, § 190, 29 January 2019), which they said gave rise to a jurisdictional link for the purposes of that obligation. The Buk-TELAR which had launched the missile belonged to the Russian Federation, those responsible for transporting and launching the missile had been Russian State agents who had fled back to Russia after the launch, the evidence relating to the downing of flight MH17 was located in the Russian Federation, and the Russian Federation had a duty to cooperate following requests for legal assistance by the applicant Dutch Government. The Court’s judgment in Georgia v. Russia (II ) did not call into question jurisdiction arising on this basis in the context of the procedural obligation to investigate under Article 2.

539 . The HRLC began by setting out its view of the relationship between attribution and jurisdiction in the extraterritorial context. As regards attribution, the question was whether particular conduct concerned conduct of a “State”. Every case litigated before the Court raised an attribution issue, but in most cases the conclusion was manifestly obvious because the impugned conduct was that of a State’s own de jure organs. Jurisdiction on the other hand was a condition imposed by Article 1 which had to be satisfied if a State was to be held responsible for acts or omissions attributable to it. It could arise in one of two forms: spatial or personal. In cases of personal jurisdiction, the conduct constitutive of authority or control over the victim was often the same as the violation ‑ establishing conduct.

540. In this context, rules of attribution of conduct stemmed from general international law, as authoritatively interpreted by the International Law Commission (“ILC”) and the ICJ. The Court had regularly referred to the ARSIWA and had relied on the attribution rules they contained. The ARSIWA were therefore a necessary starting point and any divergence from them required principled and substantial justification.

541. The HRLC explained the relevant rules of attribution as follows. First, the conduct of persons who were considered de jure or de facto organs of the State was attributable to the State under Article 4 ARSIWA. A de jure organ was a person who enjoyed such status under the State’s domestic law. A de facto organ was not regarded as such by the State’s own law but was a person or entity “completely dependent” on the State, which in fact acted as if it was one of its organs. Second, under Article 8 ARSIWA the conduct of a person who was neither a de jure nor a de facto organ could still be attributed to the State if the State had instructed, directed or effectively controlled that person into committing the specific conduct in question.

542. In respect of the downing of flight MH17, if the crew of the Buk ‑ TELAR had been members of the armed forces of the Russian Federation, and if any other relevant individuals had been officials of, for example, the respondent State’s security agencies, the conduct would be that of the respondent’s de jure organs. If the crew of the Buk-TELAR and other relevant individuals had been personnel of separatist armed groups, one possible theory of attribution would be that of de facto organ status, which would require showing that the armed groups in eastern Ukraine had been completely dependent on and controlled by the respondent State. A different theory would be based on instructions, directions or effective control by the respondent State over the downing of flight MH17. This would require showing that Russian officials had issued instructions that the aircraft be shot down or that they had exercised control over the act itself.

543. In the event that the downing of flight MH17 could be attributed to Russia, the question would then arise whether the victims on board the flight had been within Russia’s jurisdiction under either the spatial or the personal approach applied by the Court.

544. If applying the spatial test, it would need to be established that the respondent State had been in effective control of the area of eastern Ukraine over which the aeroplane was shot down. Its control could be exercised either directly or through a subordinate local administration; this was a distinct issue from attribution with the latter depending on the State’s control over a non ‑ State actor as opposed to territory. It was unclear whether the Court regarded all conduct of the subordinate administration to be attributable to the State, or whether it held the respondent State responsible for failing to prevent violations by the non-State actor. The latter view was to be preferred to preserve consistency with the ARSIWA and ICJ case-law. Applying this model to the downing of flight MH17 created a potential for arbitrariness since the applicability of the Convention depended on exactly where the aircraft was shot down: had the aircraft been shot down a few kilometres away under otherwise identical circumstances, a different conclusion might be reached.

545. Under the personal test, the Court would need to establish whether the firing of the missile was an exercise of authority or control by the respondent State over the victims. Attribution was a logical precondition of finding jurisdiction on this basis: the act which established jurisdiction was the same act that established a potential violation and it needed to be attributable to the respondent State. While the Court in Banković and Others (cited above) had confirmed that the use of lethal force against the applicants from the air did not create a jurisdictional link, it had subsequently accepted in Al-Skeini and Others (cited above) that the use of lethal force could, in certain unspecified circumstances, constitute such a link. It had further clarified that in such circumstances Convention rights could be divided and tailored so that only those relevant to the victims’ situation (in this case, the right to life) would apply. In Georgia v. Russia (II) (cited above) while a majority of the Grand Chamber had reaffirmed a restrictive approach, it had left the door open to such situations being covered when considering extraterritorial assassinations.

546 . In the view of the HRLC, the Court should avoid arbitrary line drawing by applying a personal rather than a spatial model of jurisdiction in the present case. Taking such an approach would enable the Court to conclude that the shooting down of the aircraft was an exercise of physical power over the individuals onboard. It would bring the Court’s case-law into line with other human rights bodies, including the Human Rights Committee.

(a) Introductory remarks

547. The Convention organs have developed a framework for the interpretation and application of Article 1 of the Convention. The relevant principles have evolved with a view to the effective protection of human rights in a largely regional context. Their origins pre ‑ date the ARSIWA (A 85-88), which were only adopted in 2001 and took into account the prior case-law of the Convention organs when formulating the relevant rules under international law.

548. The Court’s case-law demonstrates that the assessment of whether a respondent State had Article 1 jurisdiction in respect of complaints about events outside that State’s formal territorial borders may involve consideration of ratione loci or ratione personae jurisdiction, or both. Where the principal argument is that the respondent State exercised effective control over an area, the question that arises is, essentially, whether that area can be considered to fall within the ratione loci jurisdiction of the respondent State, with all the attendant rights and responsibilities that entails, notwithstanding the fact that it falls outside its territorial boundaries. Where the argument is rather that the victims fell under State agent authority and control in territory which the State did not control, the principal question will be whether the respondent State exercised ratione personae jurisdiction.

549 . Even in cases where it is established that the alleged violations occurred in an area under the respondent State’s effective control (and thus within its ratione loci jurisdiction), the latter will only be responsible for breaches of the Convention if it also has ratione personae jurisdiction. This means that the impugned acts or omissions must have been committed by State authorities or be otherwise attributable to the respondent State.

550. The Court has consistently explained that issues of attribution and the responsibility of the respondent State under the Convention for the acts complained of fall to be examined at the merits phase of the proceedings (see, recently, Ukraine v. Russia ( re Crimea) , cited above, § 266, and the references cited there). It is, however, important to clarify that this concerns the evidential question whether the act or omission complained of was in fact attributable to a State agent as alleged. It does not preclude an assessment, at the admissibility stage, of whether particular individuals or entities could be considered State agents such that any actions shown at the later merits stage to have been taken by them would be capable of giving rise to the responsibility of the State (see, for example, the approach taken in the Commission’s decision of 26 May 1975 in Cyprus v. Turkey, nos. 6780/74 and 6950/75, D.R. 2, p. 125 at p. 137, and its subsequent report, cited above, p. 32 at § 84).

551. Thus while the test for establishing the existence of jurisdiction under Article 1 of the Convention is not the same as the test for establishing a State’s responsibility for an internationally wrongful act under international law, now codified in ARSIWA (see Catan and Others , cited above, § 115), there may be some areas of overlap in so far as the Court is invited to examine whether any acts of the perpetrators are to be attributed to the State in the context of its jurisdiction assessment. In determining whether an individual or entity may be considered a State agent, the rules set out in the ARSIWA as applied by international courts and tribunals are clearly relevant and the Court’s case-law shows that they are taken into account (see, for example, Makuchyan and Minasyan v. Azerbaijan and Hungary , no. 17247/13, §§ 112 ‑ 18, 26 May 2020; and Carter v. Russia , no. 20914/07, §§ 162-69, 21 September 2021).

(b) The general principles regarding jurisdiction

552. As noted above, the present case concerns only the alleged responsibility of the Russian Federation in respect of alleged Convention violations in the relevant parts of Donbass. Only the potential extra-territorial jurisdiction of the Russian Federation over these areas at the relevant time is before the Court in this case: the Article 1 jurisdiction of Ukraine over these areas, which fall within its own sovereign territory, is not under examination. However, the Court considers it helpful to set out the general principles in respect of both situations, since they form part of a holistic view of the Court’s approach to jurisdiction in such cases.

(i) Territoriality

553 . Under Article 1, the High Contracting Parties undertake to “secure to everyone within their jurisdiction” the rights and freedoms set out in the Convention. It follows that all of those within the territory of a Convention State enjoy the Convention rights and freedoms and that the responsibility for fulfilling the Article 1 obligation falls, in principle, on the territorial State. This gives rise to two presumptions: that a State exercises jurisdiction normally throughout its territory; and that a State does not exercise its jurisdiction outside its territory (see Ilaşcu and Others , cited above, §§ 312 and 314). However, either or both of these presumptions may be rebutted in exceptional cases.

(ii) Exception to territoriality: within a State’s own territory

554 . In Ilaşcu and Others (cited above, § 312), a case brought against the Russian Federation and Moldova, the Court explained that a State may be prevented from exercising its authority in part of its territory. This could be as a result of military occupation by the armed forces of another State which effectively controls the territory concerned, acts of war or rebellion, or the acts of a foreign State supporting the installation of a separatist state within the territory of the State concerned (see also Shavlokhova and Others v. Georgia (dec.), no. 45431/08 and 4 others, § 29, 5 October 2021; and Bekoyeva and Others v. Georgia (dec.), no. 48347/08 and 3 others, § 34, 5 October 2021). This does not mean that the territorial State’s jurisdiction is excluded entirely: in view of its positive obligations, the territorial State remains under a residual duty to take all the appropriate measures which it is still able to take, including to re-establish control over the territory in question and to ensure respect for the applicant’s individual rights (see Ilaşcu and Others , cited above, §§ 313, 333, 335 and 339; and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 130-31, ECHR 2015).

(iii) Exception to territoriality: outside a State’s sovereign borders

555. As regards extraterritorial jurisdiction, it is well-established case-law that acts of the States Parties performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 of the Convention.

(α) The relevance of international armed conflict

556. Extraterritorial jurisdiction is not excluded in situations of international armed conflict: the Court’s case-law is replete with examples of States being held responsible for acts which occurred in the context of an international armed conflict taking place outside their own sovereign borders (see, for example, the judgments in Cyprus v. Turkey , Al-Skeini and Others , Hassan and Georgia v. Russia (II) , all cited above).

557 . However, when approaching the question of Article 1 jurisdiction in its recent judgment in Georgia v. Russia (II) (cited above, § 83), the Court drew a distinction between the “military operations carried out during the active phase of hostilities” in that case, and the other events which it was required to consider in the context of the international armed conflict under examination. It explained that:

“125. In the present case the Court is required to examine whether the conditions applied by the Court in its case-law to determine the exercise of extraterritorial jurisdiction by a State may be regarded as fulfilled in respect of military operations carried out during an international armed conflict.

126. In that connection it can be considered from the outset that in the event of military operations – including, for example, armed attacks, bombing or shelling – carried out during an international armed conflict, one cannot generally speak of ‘effective control’ over an area. The very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area. This is also true in the present case, given that the majority of the fighting took place in areas which were previously under Georgian control ...

127. It must therefore be determined in the present case whether there was ‘State agent authority and control’ over individuals (the direct victims of the alleged violations) in accordance with the Court’s case-law, and what the precise scope of those terms is.

...

130. In most of the cases that it has examined since its decision in Banković and Others (cited above), the Court has found that the decisive factor in establishing ‘State agent authority and control’ over individuals outside the State’s borders was the exercise of physical power and control over the persons in question ...

131. Admittedly, in other cases concerning fire aimed by the armed forces/police of the States concerned, the Court has applied the concept of ‘State agent authority and control’ over individuals to scenarios going beyond physical power and control exercised in the context of arrest or detention ...

132. However, those cases concerned isolated and specific acts involving an element of proximity.

133. By contrast, the active phase of hostilities which the Court is required to examine in the present case in the context of an international armed conflict is very different, as it concerns bombing and artillery shelling by Russian armed forces seeking to put the Georgian army hors de combat and to establish control over areas forming part of Georgia.

134. The Court observes that in Banković and Others (cited above) it found that the wording of Article 1 of the Convention did not accommodate the theory that ‘anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby “brought within” the “jurisdiction’ of that State for the purpose of Article 1 of the Convention’ ( ibid. , § 75). It added that interpreting the concept of jurisdiction in that way was tantamount ‘to equat[ing] the determination of whether an individual falls within the jurisdiction of a Contracting State with the question of whether that person can be considered to be a victim of a violation of rights guaranteed by the Convention. These are separate and distinct admissibility conditions, each of which has to be satisfied in the aforementioned order, before an individual can invoke the Convention provisions against a Contracting State’ ( ibid. , § 75 in fine ).

...

136. The Court sees no reason to decide otherwise in the present case. The obligation which Article 1 imposes on the Contracting States to secure to everyone within their jurisdiction the rights and freedoms guaranteed by the Convention is, as indicated above, closely linked to the notion of ‘control’, whether it be ‘State agent authority and control’ over individuals or ‘effective control’ by a State over a territory.

137. In this connection, the Court attaches decisive weight to the fact that the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos not only means that there is no ‘effective control’ over an area as indicated above (see paragraph 126), but also excludes any form of ‘State agent authority and control’ over individuals.

138. The Court therefore considers that the conditions it has applied in its case-law to determine whether there was an exercise of extraterritorial jurisdiction by a State have not been met in respect of the military operations that it is required to examine in the instant case during the active phase of hostilities in the context of an international armed conflict.”

558 . In Georgia v. Russia (II) , there was a clear, single, continuous five ‑ day phase of intense fighting during which Russian troops advanced on Georgian territory seeking to establish control (“the five-day war”); after that, a ceasefire agreement was reached and largely observed. The Grand Chamber was therefore able to refer to “the five-day war” as a distinct “active phase of hostilities” and to separate out complaints which it identified as concerning “military operations carried out during the active phase of hostilities”. It summarised the alleged attacks falling under this heading as covering “bombing, shelling and artillery fire” (see, for example, § 51 of the judgment). Since it found jurisdiction to exist in respect of the detention and treatment of civilians and prisoners of war even during the “five-day war” (see §§ 238-39 and 268-69 of the judgment), there can be no doubt that a State may have extraterritorial jurisdiction in respect of complaints concerning events which occurred while active hostilities were taking place. The Georgia v. Russia (II) judgment cannot, therefore, be seen as authority for excluding entirely from a State’s Article 1 jurisdiction a specific temporal phase of an international armed conflict.

(β) The criteria for establishing jurisdiction

559 . Where an allegation of extraterritorial jurisdiction is made, the Court will assess whether there are exceptional circumstances justifying a finding by it that the State concerned was exercising jurisdiction extraterritorially by reference to the specific facts of the case (see M.N. and Others v. Belgium (dec.) [GC], no. 3599/18, §§ 101 ‑ 02, 5 May 2020 ). The two main criteria are effective control by the State over an area (spatial concept of jurisdiction, or jurisdiction ratione loci ) and State agent authority and control over individuals (personal concept of jurisdiction, or jurisdiction ratione personae ) (see Georgia v. Russia (II) , cited above, § 115). A further criterion which may be relevant in cases concerning the procedural obligation under Article 2 is the notion of a jurisdictional link between the respondent State and the victim’s relatives in the circumstances of the case. These criteria will be considered in turn below.

‒ Effective control over an area

560 . The first situation in which extraterritorial jurisdiction may, exceptionally, arise is where a Contracting State exercises effective control of an area outside its national territory, usually as a consequence of lawful or unlawful military action. This is a question of fact and in resolving it the Court will primarily have reference to the strength of the State’s military presence in the area. However, other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Al ‑ Skeini and Others , cited above, §§ 138-39; and Georgia v. Russia (II) , cited above, §116 ).

561 . Where there is effective control over an area, whether exercised directly by the Contracting State’s own armed forces or via the local subordinate administration, there is ratione loci jurisdiction (see paragraph 559 above). For Article 1 purposes, therefore, the area in question is treated as being indistinguishable from areas within the controlling State’s sovereign borders. The controlling State accordingly has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and will be liable for any violations of those rights in exactly the same way as it would be in a purely territorial context (see Cyprus v. Turkey , cited above, §§ 76-77; and Al-Skeini and Others , cited above, § 138).

562. The Court has never said that there can only be effective control over an area outside a State’s sovereign borders if the area in question falls within the territory of one of the High Contracting Parties (see, in particular, Issa and Others v. Turkey , no. 31821/96, §§ 74-75, 16 November 2004). However, this would appear to be the rationale behind its conclusion that the controlling State should in principle be held accountable for all breaches of negative and positive obligations under the Convention within the controlled territory (see paragraph 561 above). After all, as the Court has explained, to hold otherwise would be to deprive the population of that territory of the rights and freedoms previously enjoyed and to which they are entitled, and would result in a vacuum of protection within the legal space of the Convention (see Cyprus v. Turkey , cited above, § 78; and Al ‑ Skeini and Others , cited above, § 142). It has moreover emphasised that the Convention is a constitutional instrument of European public order: it does not govern the actions of States which are not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Al-Skeini and Others , cited above, § 141).

563. The Court has accordingly concluded that extraterritorial ratione loci jurisdiction existed in a number of such cases concerning territory inside the Convention legal space (see, for example, Cyprus v. Turkey , IlaÅŸcu and Others , Catan and Others , Georgia v. Russia (II) and Ukraine v. Russia ( re Crimea) , all cited above; and Chiragov and Others v. Armenia [GC], no. 13216/05, ECHR 2015 ). To date, the Court has never found there to be extraterritorial jurisdiction on account of ratione loci jurisdiction over an area outside the sovereign territory of the Council of Europe member States.

‒ State agent authority and control

565 . The second situation in which extraterritorial jurisdiction may exceptionally arise is where there is State agent authority or control over the victim (see Georgia v. Russia (II) , cited above, §§117-24).

566. A State Party’s jurisdiction may arise from the actions or omissions of its diplomatic or consular officials when, in their official capacity, they exercise abroad their authority in respect of that State’s nationals or their property, or where they exercise physical power and control over certain persons (see Al-Skeini and Others , cited above, § 134; and M.N. and Others v. Belgium , cited above, §§ 106 and 117-19 ).

567. The Court has also explained that a State may exercise extraterritorial jurisdiction where, with the consent or at the invitation of the government of the State concerned, it exercises via its agents or others under their command and direct supervision public powers normally to be exercised by that government (see Al-Skeini and Others , cited above, §§ 135 and 144 ‑ 47; and Jaloud v. the Netherlands [GC], no. 47708/08, §§ 139, 149 and 152, ECHR 2014 ).

568. Finally, the Court’s case-law establishes that in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities within that State’s Article 1 jurisdiction (see Al-Skeini and Others , cited above, § 136; Georgia v. Russia (II) , cited above, § 117; and Carter , cited above, §§ 126-130, 150 and 158-61). The exact content of this exception has been the subject of much analysis and discussion in the Court’s case-law (see, most recently, Georgia v. Russia (II) , cited above, §§ 117-24 and 130-136; and Carter , cited above, §§ 126-30). It would appear that it encompasses two distinct, albeit potentially overlapping, scenarios.

569. First, it covers the exercise by State agents of physical power and control over the victim or the property in question (see Al-Skeini and Others , cited above, § 136). This clearly includes cases in which the individual is in custody ( Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005 ‑ IV). It may also include cases in which freedom of movement or action is subject to a lesser form of restraint (see, for example, Medvedyev and Others v. France , [GC], no. 3394/03, § 67, ECHR 2010).

572. Unlike jurisdiction based on effective control over an area, the Court has on numerous occasions found personal jurisdiction under Article 1 of the Convention to exist outside the Convention legal space (see, among other examples, Öcalan , Medvedyev and Others , Al-Skeini and Others and Jaloud , all cited above).

‒ “Jurisdictional link” as regards the procedural obligation under Article 2

573. The Court has recently clarified how the issue of jurisdiction is to be approached where a death occurs outside the territory of the Contracting State in respect of which the procedural obligations under Article 2 of the Convention are said to arise (see Güzelyurtlu and Others , cited above, §§ 188 ‑ 90, 29 January 2019; Georgia v. Russia (II) , cited above, § 330; and Hanan v. Germany [GC], no. 4871/16, §§ 132 ‑ 133, 16 February 2021 ). In this context, the Court has emphasised that the procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous obligation that can be considered to be a detachable obligation arising out of Article 2 and capable of binding the State even when the death occurred outside its jurisdiction (see Güzelyurtlu and Others , cited above, § 189). In such cases, the question is whether there is a jurisdictional link for the purposes of Article 1 of the Convention.

574. If the investigative or judicial authorities of a Contracting State institute, by virtue of their domestic law, their own criminal investigation or proceedings concerning a death which has occurred outside the jurisdiction of that State, this may in itself be sufficient to establish a jurisdictional link between that State and the victim’s relatives who later bring proceedings before the Court (see, Güzelyurtlu and Others , cited above, § 188, as refined in Hanan , cited above, § 135).

575. Where no such investigation or proceedings have been instituted in a Contracting State, special features may trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2. It is not possible to set out an exhaustive list of such features since they will necessarily depend on the particular circumstances of each case and may vary considerably from one case to another ( Güzelyurtlu and Others , cited above, § 190). The Court has found special features sufficient to give rise to a jurisdictional link in a number of cases (see, for example, Güzelyurtlu and Others , cited above, §§ 191 ‑ 96; Georgia v. Russia (II) , cited above, §§ 331-32; and Hanan , cited above, §§ 137-42 ).

(c) Application of the general principles to the facts of the case

576. According to the approach in Georgia v. Russia (II) , the first question to be addressed in cases concerning armed conflict is whether the complaints concern “military operations carried out during an active phase of hostilities”, in the sense of “armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos”. In that case, the question was answered in the affirmative and, as a result, there was no extraterritorial jurisdiction of either kind in respect of the relevant substantive complaints (see §§ 126 and 137 of that judgment), although there was a duty to investigate deaths which had occurred (see §§ 329-30 of the judgment).

577. Since the vast majority of allegations advanced in the present case (see paragraphs 373-382 above) cannot be said to fall into this category, the Court will first examine whether extraterritorial jurisdiction arose at any point in the present case before considering whether certain complaints or aspects of them might be said to be excluded from any jurisdiction established, on the basis that they occurred outside any area of effective control or concerned “military operations carried out during an active phase of hostilities”. It will accordingly first determine whether the respondent Government enjoyed at any point effective control over the relevant parts of the Donetsk and Luhansk regions (see paragraph 560 above).

(i) Whether there was effective control over an area

578. In order to determine whether the respondent State had extraterritorial jurisdiction over the areas in eastern Ukraine under separatist control, regard must first be had to the military presence of the Russian Federation’s armed forces in eastern Ukraine. If such presence alone does not suffice to demonstrate effective control over the area, then it will be necessary to have regard to whether Russian Federation military, political and economic support to the “DPR” and the “LPR” provided it with influence and control over the area (see paragraph 560 above).

(α) Military presence

‒ The parties’ memorials

579 . The respondent Government denied that Russian troops had been present in eastern Ukraine. They acknowledged only one incident where ten members of the 331st Guards Airborne Regiment had been captured in Ukraine, but claimed that they had crossed the border by mistake. In response to the Court’s invitation (see paragraph 401 above) to provide information as to “any presence at any point of regular Russian soldiers or officers or active employees of the Russian military or Russian intelligence/security services in eastern Ukraine working in any capacity”, the respondent Government said they considered it “quite likely” that since 2014 some soldiers of the Russian Federation had gone to eastern Ukraine in their personal capacity. However, Ukraine had identified no legal obligation on the Russian Federation to prevent such persons from visiting Ukraine while on leave or after their period of service. Over three million people had been conscripted to the armed forces of the Russian Federation between 2010 and 2019 and it was “not possible for the Russian Federation to monitor the travels and interests of every military officer and soldier”. Invited to provide information on the regulations applicable to the taking of leave by Russian servicemen for the purpose of travel abroad and details of such leave requests, the respondent Government referred broadly to Russian servicemen travelling abroad “on the basis of authorisations of the relevant officials of the Ministry of Defence” in accordance with the Russian legislation and applicable treaties. It was not practicable to collect the information requested by the Court and it was “not clear why private travels are of relevance to the case”.

580. The respondent Government further declined to provide information and supporting documents as to soldiers’ deployment on the basis that details of military deployments were classified. They went on to explain that information on losses of military personnel was a State secret and insisted upon the reasonableness of classifying such information. They added that Russian armed forces had not been deployed in Ukraine during the relevant period so the data would not, in any event, assist the Court. They denied that there had been any repatriation of dead bodies “relevant to” the alleged deployment in Ukraine of Russian armed forces. They did not respond to the Court’s invitation to provide details of soldiers wounded since the outbreak of hostilities in eastern Ukraine, including where they had been wounded.

581. In response to the Court’s invitation to provide information as to the number of Russian nationals fighting in eastern Ukraine or individuals crossing the border to fight, the respondent Government provided no substantive information. They provided instead annual figures of the number of people crossing border check points and entry points between Russia and Ukraine.

582 . In response to the Court’s invitation (see paragraph 401 above) to provide information on why further OSCE observer missions had not been deployed at border crossing points in addition to the two missions mandated in July 2014 at the Donetsk (Russia) and Gukovo border crossings, the respondent Government said that they would seek to obtain details upon Ukraine identifying any communication with any agency of the Russian Federation on this issue.

583 . The respondent Government refused to clarify, in response to the Court’s invitation, which of the “DPR” and “LPR” leaders had previously served in the Russian army or intelligence/security services or had been involved on behalf of the Russian Federation in Transdniestria, South Ossetia, Abkhazia or Crimea. Instead, they provided the figure of the number of yearly conscripts in the Russian army since 2010. They did not accept that Mr Girkin had been acting on their account or under their instructions and claimed that he had resigned from the Russian military before entering eastern Ukraine.

584 . Invited to clarify the parties and individuals involved in the negotiations at Ilovaisk and the capacity in which they had been involved (see paragraph 401 above), the respondent Government replied that they “cannot comment on the existence of any negotiations”. Any participation in humanitarian and diplomatic moves would not imply any State participation in, or control over, the hostilities.

585 . Invited to make submissions concerning the award of Russian military medals, including the number of each kind of military medal awarded since April 2014, the recipients of and reasons for these awards and the manner in which Russian military medals were numbered (see paragraph 401 above), the respondent Government highlighted Bellingcat’s “unwarranted assumption that medals are awarded with sequential numbers”. They explained that medals might be forwarded to military authorities from storage warehouses, with no requirement that they be distributed from storage or awarded in ascending order of their numbers. They further explained that medals were not only awarded for achievements in active combat. For example, they explained that the medal “For excellence in combat” had been awarded to many of those involved in the security of the St Petersburg International Economic Forum. In 2014, various medals had been awarded to those involved in ensuring security at the Sochi Winter Olympic Games. The respondent Government were unable to provide details of the recipients of medals or the dates or reasons for the awards since, they said, the regulations of the Russian armed forces did not provide for registration of decorated servicemen by reason for the award. They added, “In any event, providing details of recipients of medals and the reasons for the award could expose details of military and other operations, as well as exposing military personnel (e.g. those that fought in Syria) to risk of personal harm as reprisals for their involvement in military action”. Specifically invited to comment on whether any leaders or members of separatist armed groups had been awarded military medals or other honours, the respondent Government replied that, “[i]n absence of any concrete allegations from Ukraine as to military medals or other honours allegedly awarded to leaders or members of separatist groups, it is not feasible for the Russian Federation to address this question”. The question was in any event immaterial because medals and honours could not serve as an indication of relevant acts being inspired or directed by the Russian State.

586 . The applicant Ukrainian Government provided extensive and specific lists of the Russian units they claimed were in eastern Ukraine, notably in an “Expert opinion on Forensic Commission Military Examination”, dated 6 October 2017, and in a letter from the Main Directorate of the Intelligence of the Ministry of Defence of Ukraine, dated 19 March 2018. The 2017 report included details of specific dates (and in some cases times) when, and places where, identified Russian military units had entered Ukrainian territory. For example, it stated that on 24 August 2014 at 7 a.m., 400 soldiers of the 331st Guards Parachute Regiment of the 98th Division of the Airborne Forces of the Russian Armed Forces invaded Ukraine in the area of Pobeda and Berestove in the Starobeshevsky district of the Donetsk region. The 2018 letter described the structure and relationship of the combined official armed forces of the Russian Federation and the separatist forces. According to the letter, the overall command of Russia’s hybrid forces in eastern Ukraine was under the direct control of the General Staff of the Russian armed forces. The letter identified by name and rank those within the Russian military who had taken on leadership roles or spent time in the “DPR” and “LPR” armed forces. The applicant Ukrainian Government provided a supplementary letter from the Ukrainian Ministry of Defence, Directorate of Intelligence, dated 30 April 2018, which listed the names, rank and deployment of Russian service personnel captured or identified as operating inside the territory of Ukraine, together with each person’s date and place of birth. They supplied witness statements of soldiers involved in the retreat at Ilovaisk in which the soldiers claimed that they had been taken captive by soldiers who did not hide the fact that they were from the Russian military and that negotiations had taken place between senior members of the Ukrainian and Russian armed forces. They provided information on deaths of Russian soldiers in eastern Ukraine and the alleged repatriation of their bodies to the Russian Federation.

587. The applicant Dutch Government argued that there was considerable evidence showing the presence of members of the armed forces of the Russian Federation in the east of Ukraine and fighting on the side of the “DPR”. First, the presence of members of the Russian armed forces was confirmed in press interviews with them and the parents of the military personnel. Reports by both Russian and non ‑ Russian journalists included eyewitness accounts and photographs as well as interviews with bereaved parents who had lost their sons fighting in eastern Ukraine. Second, the Atlantic Council had identified two members of the armed forces of the Russian Federation who had been sent to Ukraine to fight alongside the separatist forces. One of the two identified members had confirmed that he had been amongst “thousands [of] others”, who had been first stationed at military training camps near the Ukrainian border and from there sent to the east of Ukraine. Third, NATO had released images that showed Russian combat forces engaged in military operations in eastern Ukraine. According to NATO’s estimates, by March 2015 approximately twelve thousand members of the Russian armed forces (including military advisers, weapons operators and combat troops) had been present in eastern Ukraine. The applicant Dutch Government claimed that the typical modus operandi was that commanders ordered members of the armed forces of the Russian Federation to conceal the identifying features of their military vehicles, to remove insignia from uniforms and to travel across the border to join separatist forces in the east of Ukraine. Finally, the applicant Dutch Government underlined that on 17 December 2015, at his annual press conference with journalists, the President of the Russian Federation had confirmed that Russian armed forces had been present in Ukraine, stating as regards eastern Ukraine that “[w]e never said there were not people there who carried out certain tasks, including in the military area ...”.

‒ The findings of the Court

588. The respondent Government denied in their written memorials and oral submissions to the Court that there were any members of the Russian military in Donbass during the period under consideration. It is noteworthy, however, that the President of the Russian Federation himself said in 2015 that, “[w]e’ve never said there are no people there [in Donbass] who deal with certain matters, including in the military area ...” (see A 2608). This statement, in and of itself, provides sufficient grounds for the inference that there were members of the Russian military operating inside eastern Ukraine at the relevant time. At the very least, it calls for further explanation, and it is striking that the respondent Government have consistently failed to provide any explanation whatsoever despite being expressly invited to address the issue of the presence of members of the Russian military in eastern Ukraine in the context of their supplementary memorials (see paragraph 401 above).

589. The Court further notes the similarities in time, space and method between the events in Crimea in late February and early March 2014 – which the Court has found were within the jurisdiction of the respondent State (see Ukraine v. Russia ( re Crimea) , cited above, §§ 335 ‑ 37) – and events in eastern Ukraine during the early stages of the unrest. In both cases, protests began by what were apparently local volunteers who subsequently took up arms and took over Government buildings. These “local” separatists subsequently organised “referendums” on the status of the regions concerned which apparently showed a large majority in favour of separation from Ukraine.

590 . It is significant that the evidence establishes that one of the central figures in the Crimea events, Mr Girkin (see paragraphs 108, 135 and 145 above), travelled to eastern Ukraine in early April with a group of men and shortly afterwards took control of Government buildings in Slovyansk. Indeed, this is not contested by the respondent Government. They have, however, denied that he was operating on their instructions and claimed that he had resigned from the Russian military before entering eastern Ukraine (see paragraphs 456 and 583 above). These assertions could easily have been corroborated by the submission of evidence of Mr Girkin’s previous employment and his resignation. However, no such documents have been provided. It follows from the Court’s decision in Ukraine v. Russia ( re Crimea) , cited above, and Mr Girkin’s clearly established role in those events that as recently as February 2014, Mr Girkin had entered Ukraine on the instructions of the Russian Federation in order to lead a successful separatist operation in Crimea. In a press interview in November 2014, Mr Girkin underlined his role as an adviser to Mr Aksyonov (see paragraph 98 above) in Crimea and stated that the latter had “asked me to deal with the northern territories” (A 2569). In his capacity as adviser to Mr Aksyonov, he had begun working with delegates from, inter alia , the Luhansk and Donetsk regions before gathering a team of armed men to travel to Slovyansk. He explained that in Crimea he had been heavily involved behind the scenes but had been discreet as to his identity and said that he had “planned to behave in the same way” in Slovyansk and find a “charismatic leader and help as an advisor” (A 2570).

591 . In the absence of any evidence to the contrary, the Court finds it established that Mr Girkin travelled to eastern Ukraine as an extension of his activities in Crimea, to act there under the general authority of the Russian Federation and to carry out that State’s interests. The material before the Court includes extensive intercept evidence which demonstrates significant contact between Mr Girkin and Russian contacts, including Mr Aksyonov, the “Head of the Republic of Crimea” appointed by the Russian President himself (see paragraph 98 above and A 1525, 1528 and 1530). That evidence appears, moreover, to corroborate the alleged subordinate role of Mr Girkin vis-à-vis his Russian contacts, since it shows Mr Girkin reporting to them, receiving their instructions and requesting their assistance (see also A 1555 and A 1606-09).

592 . Similarly, the elements in the case-file show that Mr Borodai, “prime minister” of the “DPR” from May 2014 (see paragraphs 105 and 145 above), had also been in Crimea working as a political advisor to Mr Aksyonov immediately before going to Donbass. Again, the intercept evidence provides support for the allegation that he was acting under instructions: in an intercepted telephone call of 3 July 2014, he can be heard stating that he is “carrying out orders and protecting the interests” of one State and one State only: “the Russian Federation” (A 1550. See also A 1540, 1542, 1544-45, 1554, 1556-57, 1559 and 1605).

593 . It is also relevant that the case-file reveals – and it was not denied by the respondent Government – that both men had prior military experience and had fought together on behalf of the respondent State in Transdniestria. Mr Girkin made no secret of the fact that he held the rank of colonel in the FSB. They were not the only two prominent separatist leaders to have come from a Russian military or intelligence background: the elements in the case ‑ file support the allegation that this group also included Mr Dubinskiy, Mr Bezler, Mr Pavlov and Mr Antyufeyev (see paragraphs 107, 103, 120 and 100 respectively, above). Witness statements taken in the proceedings of IlaÅŸcu and Others , cited above, record primary evidence that Mr Antyufeyev, under the name Vadim Shevtsov, was a “Government” minister in the Russian-controlled “Moldavian Republic of Transdniestria” (“MRT”) (see also Catan and Others , cited above, where it was stated: “The ‘Chief of the MRT Internal Security Service’ was Vladimir Antiufeev, a former Russian general”). At a “DPR” press conference on 10 July 2014, Mr Antyufeyev confirmed that he had previously worked in Transdniestria, said that he had arrived from Russia that very day and stated that his military rank was Lieutenant-General (A 2555-56). The intercept material includes a telephone conversation between Mr Surkov, at the time an adviser to the Russian President, and Mr Borodai on 3 July 2014 in which the former said that “ [s]ome certain Antiufeyev will be setting off for your place” (A 1554) . This comment carries the clear implication that Mr Antyufeyev arrived in Donbass as an instrument of the respondent Government. The respondent Government have declined to clarify the military backgrounds and engagements of these individuals. The information as to the exact dates of service of these individuals, their military backgrounds and ranks and the nature of their contacts with officials and agencies of the Russian Federation at the relevant time lies wholly within the exclusive knowledge of the respondent State.

594 . It is accordingly appropriate for the Court to infer from the evidence in the case-file, and in the absence of explanation from the respondent Government, that among the separatist leadership there were members of the Russian military acting under Russian instruction.

595 . The case-file also includes evidence of the presence of Russian nationals, including Russian soldiers, in the armed groups as well as of the deployment of regular troops of the Russian armed forces.

596. The reports of the OSCE Border Mission record high numbers of people in military-style dress crossing the border from the Russian Federation to Ukraine (A 473, 475, 480, 482-83, 485, 491, 497-99, 503-04, 506, 511, 514, 518-19, 552, 566, 586). There is also evidence from the OSCE monitors of ambulances, a number of which had Russian registration plates, regularly crossing the border from eastern Ukraine to Russia (A 473, 477, 480, 482, 494, 497, 501, 515-16, 526-27, 529, 535, 537, 540-41, 544, 550, 554-56, 563, 570, 572, 575-76, 579-80, 582, 584, 589, 594-95, 598, 601-02, 606, 609, 613, 615-20, 623, 625-26, 632, 634-35 and 637-39). On one occasion, the OSCE monitors observed a minivan which it described as “similar to an ambulance car” with the words “Search and Rescue Services of the MES RF” written on it and three people in dark blue Ministry of Emergency Situations uniforms inside (A 501). The vehicle entered the Donetsk crossing point from Ukraine and left to the Russian Federation. These elements appear inconsistent with the claim that the participation of Russian nationals was not formally coordinated or arranged by the Russian Federation. In any event, they call for a fuller and more adequate response from the respondent Government as to the participation of Russian nationals in eastern Ukraine and the extent to which it was done with official tolerance, active encouragement and organisational, medical and logistical support.

597 . The Court further notes the terms of the interpretative statements attached to the OSCE decisions to deploy observers at two checkpoints on the Ukraine-Russia border and to extend the mission’s mandate (A 135). These statements referred regularly to Russia’s refusal to extend the geographic scope of that deployment. The evidence therefore confirms that requests were made in the context of the OSCE for a broader deployment of observers at the border and that such requests were refused by Russia. In these circumstances, Russia’s response to the Court’s invitation to provide further information on this subject clarifying the precise nature of the requests and any reasons for refusal (see paragraph 582 above) was clearly inadequate. Given the allegations since the earliest stages of the conflict that armed men were crossing the border with ease, the relevance of effective border monitoring along the full length of the border between Russia and the separatist entities is evident. The inference to be drawn from the respondent Government’s failure to explain the refusal to authorise an extension is that they were unwilling to have extensive independent monitoring put in place. In the absence of any explanation for such unwillingness, the Grand Chamber infers that effective bordering monitoring was against the interests of the Russian Federation because it would have made it more difficult for Russian soldiers to cross into eastern Ukraine undetected.

598 . The SMM reports do not often refer explicitly to the presence of Russian soldiers in eastern Ukraine. Given the alleged covert nature of the deployment this is not surprising. The SMM regularly cited incidents, which they categorised as restrictions on their “freedom of movement” (A 1110, 1113-15, 1120 and 1124), where they were denied access by the separatists to particular areas thus severely restricting their ability to observe and report freely. However, the SMM nonetheless recorded having spoken with two women wearing “military uniforms, with caps with Russian Federation Armed Forces insignia” in “DPR”-controlled territory (A 659). The OSCE monitors also spoke to soldiers without identifying insignia guarding a weapons facility in “DPR”-controlled eastern Ukraine and were informed by them that they were from the 16th airborne brigade in Orenburg, Russian Federation (A 657). The SMM further recorded having spoken to injured men who were receiving medical treatment in Kyiv after having been captured in eastern Ukraine who claimed to be members of the Russian armed forces on reconnaissance missions in Ukraine (A 658). On one occasion in February 2015, the OSCE Border Mission observed a military ambulance arriving at the Russian side of the Donetsk border crossing point containing “four Russian military uniformed personnel” (A 497). They assisted with the transfer of a black plastic bag which the OSCE mission estimated to be the size and weight of a human body from a vehicle parked on the Ukrainian side of the border into the military ambulance.

599. The respondent Government have provided no explanation for any of these incidents in which the OSCE monitors spoke to or directly observed members of the Russian military, clearly identified as such, present in eastern Ukraine. As noted above, the observations reported by the OSCE carry significant weight (see paragraph 462). The Court reiterates that the respondent Government’s position is that there were no Russian regular troops in eastern Ukraine. Had their position been that there were only a very limited number of regular troops there, such position may have been reconcilable with the few examples observed by the OSCE monitors outlined above. However in view of their categorical denial, even a single report from the OSCE of the presence of regular Russian troops in eastern Ukraine calls into question the veracity of the respondent Government’s position. For this reason, the Court finds these examples to provide persuasive evidence that regular Russian troops were, contrary to what the respondent Government contended, present in eastern Ukraine.

600. The material before the Court also points to the participation of Cossacks and Chechens, fighting on the side of the separatists in eastern Ukraine. There is witness statement evidence of Chechen fighters in eastern Ukraine (A 1317, 1334-35, 1344,1492, 2178, 2192 and 2196). Investigative journalists spoke to men in Donetsk who claimed to be part of a Chechen unit that had travelled to Donetsk in mid-May 2014 to fight alongside the separatists. One of the men told the journalists that they had been ordered to Donbass by their President, Ramzan Kadyrov (A 2660. See also A 2662). These elements, which support the allegation of the organised involvement of fighters from the Chechen Republic under orders from the regional authorities there, call for an explanation from the Russian Federation as to the extent to which the participation of Chechens was sanctioned by the Russian President; no such explanation has been provided.

601. In the Luhansk region, a large swathe of territory was under the direct control of Mr Kozitsyn, ataman of the Don Cossacks (A 481, 1093 and 1239. See also A 1237-39). From October 2014, the OSCE Border Mission observed an increasing number of Cossacks crossing the border into Ukraine, some of whom carried badges and identification cards with the words “Cossack National Guard” on their sleeves (A 485. See also A 489, 566, 611, 661, 841 and 898). Mr Kozitsyn said in a November 2014 press interview that he was, “answerable only to President Putin and our Lord” (A 2564). In January 2015, Mr Kozitsyn referred to President Putin as “our emperor” (A 2572). No submissions have been provided by the respondent Government regarding the position of Mr Kozitsyn’s Don Cossacks vis-à-vis the Russian State and, in particular, the extent of any authority of the latter over the former. What is, however, plain from the evidence is that there was organised and open, large-scale recruitment in Russia of separatist fighters from within the Don Cossack community, whose ataman openly declared his allegiance to the Russian President.

602 . In press conferences by and interviews with separatist “commanders”, they referred, directly or indirectly, to the presence of Russian nationals in eastern Ukraine with the support of the Russian Government. Mr Borodai, then “DPR Prime Minister”, referred to Mr Surkov, at the time adviser to the President of the Russian Federation (see paragraph 128 above), as “our man in the Kremlin” when explaining that the Russian leadership was ready to contribute to the “DPR” at a very high level (A 2549). The respondent Government have not explained what he meant by this and it can be inferred from the intercept calls that Mr Surkov was the direct contact and political supervisor (“kurator”) of the separatists on behalf of the Russian administration, and that it was through him that many requests for material assistance were made and acted upon. Mr Borodai further announced, following a visit to Moscow in early July 2014, that he was “very much counting on the assistance of the Russian Federation in the nearest possible future” and that there were “more and more” people from Moscow in the “DPR” (A 2551 and 2554). The context in which this announcement was made must be borne in mind: in the course of June and July 2014, the Ukrainian armed forces were successfully launching offensives to recover territory that had been taken by the separatists. It was only after this that the applicant Ukrainian Government alleged the first artillery attacks on their troops, from mid-July 2014, and the first large-scale offensive by Russian regular troops at Ilovaisk in August 2014. Mr Zakharchenko, by then head of the “DPR”, said in a video released on 16 August 2014 that 1,200 “foreign fighters” had recently crossed the border into Ukraine from the Russian Federation (A 2560). On 27 August 2014, he confirmed on Russian television that 3-4,000 Russian citizens were by then fighting in the ranks of separatist forces, which according to him included former service personnel or current personnel on leave (A 2561-62). These comments, which confirm that the separatist leadership had requested from the Russian Federation more substantial military assistance and that following this request large numbers of military-trained Russian citizens had arrived in eastern Ukraine, are entirely consistent with the allegations of the applicant Ukrainian Government that certainly by August 2014 there was a large-scale deployment of regular Russian troops who participated in the fighting around Ilovaisk.

603. Witness statements by Ukrainian soldiers refer to the presence of regular Russian troops in the fighting around Ilovaisk and claim that the Ukrainian army’s retreat was negotiated directly with the Russian military (A 1405-08, 1411-13, 1419, 1423-26, 1435-36, 1443-47, 1450-51, 1453-55 and 1458-60). The OHCHR’s report on Ilovaisk refers to interviews with Ukrainian soldiers captured during the Ilovaisk events who maintained that they were attacked and captured by Russian Federation soldiers, highlighting among other things their distinctive accent, their uniforms, their weapons and the fact that the soldiers introduced themselves as belonging to certain units of the Armed Forces of the Russian Federation (A 650). The report also refers to claims by Ukrainian soldiers during interviews with the OHCHR’s Human Rights Monitoring Mission in Ukraine (“HRMMU”) that they had been taken to Russia following their capture (A 650). Other reports by NGOs which similarly refer to Russian involvement in Ilovaisk are also based on witness interviews with separatists or statements made by Russian soldiers in press interviews (A 2154, 2158 and 2210-11). An article published by Bellingcat analysed open ‑ source material to conclude that Russia’s 6th Tank Brigade was involved in the battle of Ilovaisk (see A 2434-35). When invited to clarify their role in the events at Ilovaisk, the respondent Government responded that they were unable to comment (see paragraph 584 above).

604. This position is surprising, given the involvement of Russia in the Minsk process which took place shortly after the Ukrainian retreat at Ilovaisk and resulted in a ceasefire being announced from 5 September 2014. As already explained (see paragraph 458 above), the special relationship enjoyed by the Russian Federation with the separatist entities puts the respondent Government in a position where they should be able to seek any necessary clarifications from the “DPR” and the “LPR” which would assist the Court, including in respect of the events at Ilovaisk. In any event, the Court does not accept the implicit suggestion that the Russian Federation participated in the Minsk discussions without having had access, either from its own sources or through its relationship with the separatist entities, to a great deal of information as to military matters in the “DPR” and the “LPR” in the spring and summer of 2014. That the Russian Federation was in ignorance of the detail of the events at Ilovaisk is simply not credible. In these circumstances, there are sufficient elements to establish that there is a case for the respondent Government to answer in respect of the involvement of regular Russian troops at Ilovaisk. It can be inferred from the evidence, in view of the respondent Government’s failure to provide any explanations, that units of the Russian regular troops were deployed at Ilovaisk and commanded by a hierarchy in the Russian Federation.

605. The evidence of the situation on the ground supports the conclusion that increasing military participation from the Russian Federation occurred over the summer of 2014. It reveals that control initially acquired by the separatists over vast swathes of land in Donbass in April and early May 2014 was gradually being lost over the course of that summer in the face of an increasingly professional and organised Ukrainian military response in the context of the ATO. By July and into August 2014, the separatists were in real danger of being defeated. This is evident from maps prepared in the context of Ukraine’s ATO and a video of them over time as well as from BBC maps of the conflict zone (see paragraph 517 above). While there may be some dispute as to whether particular towns or villages were under separatist control on the dates alleged, the respondent Government have not suggested that they contest the overall picture of land acquisition and loss of territory consistently presented by the available maps of the conflict. The precarious position of the separatists in July 2014 is also evident from the intercepted calls in which the prospect of defeat as well as the need for Russian assistance to prevent it are discussed (A 1527-30, 1535-36, 1554-55, 1557, 1562, 1569 and 1587). Nevertheless, in late August 2014, the separatists were suddenly able to push back against the Ukrainian military forces and reacquire the land they had previously lost. This was done in a short space of time and against the deployment of a large number of Ukrainian soldiers. The Court does not consider it credible that local separatists in eastern Ukraine, even with the support of some professional Russian soldiers on leave, could have succeeded in pushing back the Ukrainian offensive to the point of forcing a surrender at Ilovaisk and recovering, in such a short space of time, significant areas of land that had previously been lost. The evidence as to the land controlled by the separatists at different times over the summer of 2014 is therefore an element consistent with the other evidence in the case-file which shows large ‑ scale Russian troop deployment in eastern Ukraine.

606. The applicant Ukrainian Government have provided highly detailed, chronological and specific information about the active participation of Russian servicemen in eastern Ukraine (see paragraph 586 above). Their account has remained coherent and consistent throughout the proceedings before the Court and has included information regarding specific alleged land incursions, the names of individual soldiers and military units of the respondent State involved and the dates of the alleged incursions. Moreover, the account of the Ukrainian Government, based on intelligence, is supported by witness statements of Russian soldiers captured in eastern Ukraine (A 1476-91). There is also extensive evidence from NGOs which investigated, based on open source material and witness interviews, allegations that Russian soldiers were present in eastern Ukraine throughout the period of the conflict (A 2157-58, 2206-09, 2207-18, 2227-33, 2239, 2242-44, 2246, 2248-49, 2251, 2259-61, 2265, 2269-73, 2276, 2281, 2283, 2293, 2296-99, 2301, 2303, 2305, 2316-20, 2322-23, 2331, 2333, 2390 ‑ 91, 2397, 2434-35, 2453-54, 2476, 2485, 2518, 2540-45 and 2547-48). The reports went beyond vague and unsubstantiated allegations as to the presence of Russian soldiers and identified particular military units of the Russian armed forces and, in a number of cases, particular soldiers. The reports also set out clearly the material relied upon and the conclusions drawn from it.

607 . The respondent Government have provided no information as to the whereabouts at the relevant time of the soldiers and military units identified by Ukraine or in the NGO reports. They were quite clearly in a position to investigate at least a selection of the individuals identified and present detailed information to the Court on whether they did indeed fight with the separatists in eastern Ukraine or where they were in fact deployed at the time. The only direct submission on this issue was the assertion that soldiers arrested had crossed the border by mistake (see paragraph 579 above). This single assertion is inadequate to address the detailed allegations made. The respondent Government have not submitted any evidence to refute the applicant Ukrainian Government’s account, such as deployment records in relation to the identified military formations, even though such evidence was within their exclusive control and they were specifically invited to provide it. The Court accepts that information about military matters might reasonably be considered sensitive and that its classification for national security purposes is not, in principle, unreasonable. Rule 33 § 2 of the Rules of Court caters for this consideration since it allows public access to a document or to any part of it to be restricted. It would, moreover, have been possible for the respondent Government to remove sensitive passages in documents or submit a summary of the relevant passages omitting sensitive information. Indeed, in Georgia v. Russia (II) , cited above, §§ 345-46, the Grand Chamber concluded that the respondent Government had fallen short of their obligation to furnish all necessary facilities to the Court in its task of establishing the facts of the case, as required under Article 38 of the Convention, because they had refused to submit combat reports on the grounds that the documents in question constituted a “State secret”, despite the practical arrangements proposed by the Court to submit non-confidential extracts. The Grand Chamber further observed that the respondent Government had not submitted any practical proposals of their own to the Court that would have allowed them to satisfy their obligation to cooperate while preserving the secret nature of certain items of information.

608. The Court further finds unconvincing the explanation of the respondent Government that any Russian soldiers present in eastern Ukraine were on leave. The respondent Government were invited to provide further information on the regulation of soldiers’ leave requests and authorisation to travel abroad. They referred in reply to Russian servicemen travelling abroad “on the basis of authorisations of the relevant officials of the Ministry of Defence” in accordance with the Russian legislation and applicable treaties (see paragraph 579 above). However, they did not identify the applicable legislation and treaties, explain in greater detail what the authorisation procedure involved or, in so far as the authorisation was individualised, who had been granted such authorisation and for what purpose. It is entirely reasonable to assume that records of leave requests would be held in the personnel files of members of the Russian armed forces. Had the respondent Government wished to be of assistance to the Court, they could have reviewed the personnel files of soldiers in active service in the summer of 2014 (at the very least by reference to the units identified in the evidence) and provided copies or samples of leave requests made and granted. Moreover, it seems implausible that entire military units would have taken leave and travelled to Donbass simultaneously to fight there side by side, such as to be detected and identified as military units of the Russian armed forces by the relevant Ukrainian authorities, NGOs and even, on occasion, the SMM (see paragraph 598 above).

609. Further details of the leave authorisation procedure is provided in the report “Putin.War” (A 2210) where it is claimed that in order to obtain leave a Russian serviceman “must indicate in a report addressed to his commander the exact place where he will spend his vacation” and that “if the vacation is spent abroad, then the serviceman ‘must obtain permission from the Defense Minister, his commander and the consent of the Federal Security Bureau’”. The report cites an “Order by the Defense Ministry of July 31, 2006, #250 DCP”. The respondent Government have neither supplied this Order nor commented on whether it exists and whether its contents were accurately reflected in the report cited. It can be inferred from the material before the Court, in view of the failure of the respondent Government to provide further details of the applicable domestic rules, that at the relevant time Russian soldiers could only travel abroad after having received authorisation from their hierarchy to travel to a specified place. It follows from this that even soldiers on leave who were present in eastern Ukraine had been authorised to take leave there during armed hostilities, in circumstances where the allegation that Russian soldiers on leave were fighting with the separatists armed groups in large numbers was common knowledge (A 651, 2158, 2210, 2561-62, 2567-68, 2666-68, 2746 and 2753). The decision to authorise large numbers of Russian soldiers to take leave in order to join an armed separatist movement in a neighbouring country would appear to call for some further explanation.

610. This vast body of material provides strong evidential support for the allegation that Russian soldiers were present in the armed groups and that regular Russian troops were deployed in their military units, notably to participate in certain battles. As explained above, the concordant elements revealed in the evidence and the specific, detailed allegations of the applicant Ukrainian Government in this respect call for an explanation from the respondent Government as to the full extent of involvement by its soldiers in eastern Ukraine (see paragraphs 436, 459 and 586 above). However, the respondent Government have provided no convincing arguments that could call into question the credibility of the applicant Ukrainian Government’s version of events and the evidence submitted in support of it (see Ukraine v. Russia ( re Crimea) , cited above, § 328). The only reasonable inference to be drawn in these circumstances is that the allegations of the applicant Ukrainian Government in this respect are substantially accurate.

611 . In conclusion, the Grand Chamber finds it established beyond any reasonable doubt that there were Russian military personnel in an active capacity in Donbass. The conclusions outlined above in respect of Mr Girkin (see paragraph 591) establish that this was the case from 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 (see paragraph 602 above). Given the covert nature of the involvement of members of the Russian military in eastern Ukraine, on the basis of the material before the Court it is not possible to ascertain their exact number especially before the large-scale deployment at Ilovaisk. The Court does not, therefore, consider it established beyond reasonable doubt that the Russian Federation exercised effective control over the territory of the “DPR” and the “LPR” from April 2014 solely by virtue of the military presence of its own de jure soldiers.

612. It is accordingly necessary to turn to the further criteria relevant to establishing effective control over an area.

(β) Military support to the separatists

‒ Influence on military strategy

▪ The parties’ memorials

613. The respondent Government denied any involvement by the Russian Federation in the events in eastern Ukraine and any contact between Russian State agencies and representatives of the “DPR and LPR armed groups as part of any alleged control over, or instigation of, military action by the militant groups”. They maintained in particular that there was no credible evidence of FSB involvements in those events.

614. The applicant Ukrainian Government argued that the armed rebellion had been instigated by Russian special force operatives and that the separatists had been coordinated centrally throughout the entire conflict. They referred to the use of conventional Russian troops at critical moments in the conflict to reverse Ukrainian territorial gains in eastern Ukraine, such as the offensives launched in August 2014 at Ilovaisk and around Luhansk to break the encirclement of the city by Ukrainian forces.