European rights court hears case against Russia over MH17 crash

STRASBOURG, France (CN) — The Netherlands, together with Ukraine, faced off against Russia on Wednesday over the 2014 downing of a passenger jet, amid escalating tensions over Russia's buildup of troops along its border with Ukraine.

Before the European Court of Human Rights, the two nations argued that Moscow had “effective control” of the Donbas region of Ukraine, where a Malaysia Airlines passenger jet flying from Amsterdam to Kuala Lumpur was shot down over eastern Ukraine on July 17, 2014, killing everyone on board. 

Russia denies any involvement in the crash of flight MH17, which an investigative team from the Netherlands, Australia, Malaysia, Belgium and Ukraine concluded was caused by a Buk surface-to-air missile that was supplied by the Russian Federation.

"We cannot be held responsible for what happened outside our territory," Russia’s agent Mikhail Vinogradov told the Strasbourg-based rights court Wednesday. 

Several relatives of victims killed in the crash traveled to France to attend the hearing, which became increasingly rancorous as the day wore on. At one point, Vinogradov promised that Moscow wanted to help the victims and someone in attendance shouted, “You can start today.” 

Ukraine’s legal team argued Russia had committed a broad range of violations and was unreserved about its opinion of Moscow’s ongoing activities.

"Russia is gaslighting the international community and this court,” Ben Emmerson, one of Ukraine’s lawyers, told the court in his opening remarks. The hearing was held as tensions have escalated between the countries, with Russia sending thousands of troops to its border with Ukraine.

The case hinges on whether Russia “exercised control” of the area where the plane was shot down at the time of the crash. Months before the tragedy, Ukrainian voters had overthrown the country’s pro-Russian government. Moscow responded with the annexation of Crimea, a peninsula extending from Ukraine’s southern coast, and Russian-backed separatists declared independence in several areas along the border. 

Russia argues that the Netherlands filed the complaint too late, outside of the six-month window required by the human rights court. They also say that the victims have not exhausted their legal options in Russia. The 1953 European Convention on Human Rights requires that anyone bringing a case to the court first pursue their case in domestic courts. 

However, the Netherlands argues that there are exceptional circumstances in this case.

"It was considered unlikely that Russia would initiate a serious investigation," Rene Lefeber, one of the lawyers for the Netherlands, told the court. The Dutch government also argues that Russia’s ongoing disinformation campaign about the crash amounts to a continuing violation.

Piet Ploeg, who lost his brother, sister-in-law and nephew in the crash, told the court that many of the relatives felt powerless in the face of the Russian misinformation campaign.

“Their grief is compounded by the disaster after the disaster,” he said, referring to Russia’s ongoing refusal to assist with the investigation. 

In another case before a court in The Hague, the Netherlands is prosecuting four men - three Russians and one Ukrainian - who are accused of obtaining the Buk missile and bringing it to a field where it was later used to bring down the Boeing 777. Dutch prosecutors have asked for a life sentence for the men, who all remain at large. One of the men has retained counsel and his lawyers will be presenting their closing arguments in March. 

The Netherlands announced it was filing a complaint with the human rights court in 2020 after negotiations with Russia failed. The Strasbourg-based court joined the Dutch complaint with two other pending cases from Ukraine which allege numerous violations by Russia in the area. Also joined were 8,500 related individual complaints against Russia, some 400 of which stem from the plane crash.

“If Russia is held accountable in the interstate complaint, then they are responsible in the individual cases as well,” lawyer Christa Wijnakker, who is representing some of the individual victims, said before the hearing. 

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