C Explanatory memorandum
by Mr Tony Vaughan, rapporteurNote
1 Introduction
1. In its landmark judgment of
Ukraine and the Netherlands v. Russia,
the European Court of Human Rights (“the Court”) found Russia responsible
for a pattern of serious human rights violations arising from its aggression
against Ukraine since 2014. The abuses included the summary execution
of civilians; widespread and systemic use of rape and sexual violence;
a co-ordinated State policy of torture; forced labour; violence against
journalists; enforced disappearances; and many other appalling crimes.
The scale, gravity, and systematic nature of the abuses exceeded
anything the Court had previously found in its history.
Note
2. When the European Convention on Human Rights (ETS No. 5, “the
Convention”) was signed more than 75 years ago, its drafters hoped
that it would prevent these kinds of crimes from being committed
on European soil. Today, not only do we see these crimes taking
place, but we also see a lack of accountability of the perpetrators.
Following the exclusion of the Russian Federation from the Council
of Europe on 16 March 2022, the Russian authorities ended engagement
with the Court, as well as the Committee of Ministers’ process for supervising
the implementation of the Court’s judgments. They soon stopped payment
of the just satisfaction awarded by the Court and took steps so
that the Court’s judgments would have no impact at the national
level.
3. This has left the victims out in the cold. The violations
set out in the judgment of
Ukraine and
the Netherlands v. Russia are
only some of the latest to be found by the Court where the victims
have not received justice. Even before its exclusion from the Council
of Europe, the Russian Federation had a track record of refusing
to pay the just satisfaction awarded in conflict-related cases.
For example, in the 2021 judgment of
Georgia
v. Russia (II), the Court found Russia responsible for
the killing of civilians and the burning and looting of houses in
and around the region of South Ossetia in 2008 (among many other
violations).
Note The
Russian government has always refused to pay the just satisfaction
awarded to Georgia for the benefit of individual victims. Similarly,
the case of
Catan and Others v. Russia chronicles
the forced closure of schools and various measures of harassment
against pupils, parents, and staff in the Russian-controlled region
of Transnistria in the Republic of Moldova.
Note This violation has also not
been rectified for a painfully long period. Indeed, since the events
in question, a child could have completed their entire schooling
without education in their national language and mother tongue.
In addition to these conflict-related cases, there are hundreds
of other judgments concerning ordinary Russians who reside inside
and outside the country, who have suffered at the hands of their
government’s ever-increasing authoritarianism, but who have been
denied compensation and accountability.
4. There are very limited avenues to ensure the Russian authorities
comply with their legal obligations. However, there are some measures
which are worth exploring. In my report, I have chosen to focus
on two:
- the possibility of
ensuring the payment of just satisfaction awarded by the Court through
the use of frozen Russian State assets; and
- the case for imposing sanctions against individuals identified
by the Court as having participated in serious human rights violations.
2 Terminology
5. Different national legal traditions
have different terms relating to ownership and use of assets. This document
uses the following terminology. A temporary prohibition on the transfer
of assets is referred to as “freezing” in the case of funds and
“seizing” in relation to physical assets. “Confiscation” of assets
occurs when ownership has been permanently transferred. “Enforcement”
refers to compulsory measures applied to ensure payment of a debt.
6. In accordance with the general position of the Assembly, as
established in
Opinion
300 (2022) “Consequences of the Russian Federation's aggression
against Ukraine”, the Russian Federation’s “war of aggression against
Ukraine” includes events starting from February 2014 onwards.
3 Background
7. The Council of Europe’s 2025
Annual Report on the Execution of Judgments
of the European Court of Human Rights notes that Russia
accounts for the highest number of the Court’s judgments pending implementation
– 3 025 in total – representing over 43% of all cases awaiting execution.
Russia also has the highest number of leading cases pending implementation,
at 251.
Note
8. When the Russian Federation was a member State of the Council
of Europe, it already had a poor record in implementing judgments
of the Court. In regard to the payment of just satisfaction, Russia’s
record was mixed: whilst the government generally paid the compensation
awarded, it refused to do so in cases concerning conflict and post-conflict
situations (such as those relating to Russia’s responsibility for
human rights violations in Abkhazia, South Ossetia, and Transnistria),
in addition to refusing to pay a large sum awarded by the Court
to the shareholders of the Yukos oil company. Furthermore, Russia
almost always failed to adopt the broader structural and legislative
changes that would have prevented human rights violations identified
by the Court from happening again. This lack of implementation contributed
significantly to the erosion of human rights within the country
and its further shift toward authoritarian rule.
9. The Russian Federation’s already poor implementation of the
Court’s judgments deteriorated dramatically following its full-scale
invasion of Ukraine.
10. Russia was excluded from the Council of Europe on 16 March
2022. Six months later, on 16 September 2022, it also ceased to
be a Party to the European Convention on Human Rights. Although Article 58
of the Convention provides for situations whereby a State may cease
to be a Party to the Convention, it does not release the State from
its obligations in respect to events occurring when it was still
a Party. Therefore, Russia had – and still has – a continuing legal
obligation under Article 46 of the Convention to implement judgments
of the Court in respect of violations that occurred up to 16 September 2022.
11. However, the Russian government took a number of steps to
avoid abiding by its obligations under the Convention and international
law. On 11 June 2022 a new law entered into force in the Russian
Federation. This set out that any judgment of the Court becoming
final after 15 March 2022 would not be enforced; nor could such
judgments serve as a basis for reopening domestic proceedings. According
to that law, just satisfaction awarded in judgments that became
final before 15 March 2022 would be paid only until 1 January 2023,
such payments would be made exclusively in roubles, and they would
only be made to bank accounts located within the Russian Federation.
In addition to these legal developments, the general demonisation
of Western institutions, as well as criminalisation of co-operation
with many Western entities, is likely to have had a chilling effect
on any Russian residents attempting to secure payment of just satisfaction from
a judgment of the European Court of Human Rights in a Russian court
(for example, for judgments becoming final after 15 March 2022).
Furthermore, the Russian authorities have ceased all communication with
the Committee of Ministers in the context of the supervision of
implementation of judgments.
Note
12. The Committee of Ministers has since developed a number of
strategy papers regarding the implementation of cases pending against
the Russian Federation. In December 2022, given the lack of co-operation
from the Russian authorities, the Committee of Ministers resolved
to strengthen its engagement with Russian civil society in order
to obtain information. The Committee of Ministers also resolved
to strengthen co-operation with relevant United Nations bodies,
as well as to establish an online public register listing outstanding
just satisfaction awards against the Russian Federation.
Note In
May 2023, the Heads of State and Government of Council of Europe
member States affirmed, “[t]he need to make every effort to ensure
the execution of the Court’s judgments by the Russian Federation
.”
Note In September 2023, the
Committee of Ministers decided that all cases pending implementation
against Russia – and all new cases in future – would be classified
under the enhanced procedure.
Note
13. In December 2024, the Committee of Ministers instructed the
secretariat to maintain and reinforce co-operation with international
organisations in order to highlight the judgments pending execution
– and to broaden collaboration with Russian civil society. It also
called for further efforts to improve the visibility and communication
of the Committee of Ministers’ supervisory work in relation to Russia,
and for the preparation, before each quarterly Human Rights meeting,
of an overview of the measures required to implement all leading Russian
cases still pending. In addition, the Committee of Ministers resolved
to continue its regular review of inter-State cases and cases with
inter-State elements concerning the Russian Federation. It further
invited the Secretary General to send an annual letter to the Russian
Minister of Foreign Affairs, outlining the Committee of Ministers’
decisions and resolutions concerning Russia during the year.
Note
14. In December 2025, the Committee of Ministers maintained the
strategy adopted in the previous year. It noted that, since 2022,
there had been no indication that any measure had been taken to
execute judgments of the Court that had found the Russian Federation
responsible for human rights violations.
Note
4 Possible
strategies to promote the implementation of judgments of the European
Court of Human Rights concerning the Russian Federation
15. Unfortunately, the Committee
of Ministers faces significant challenges in securing the effective implementation
of these judgments. Its current strategy primarily rests on strengthening
co-operation with United Nations bodies, engaging with Russian civil
society, issuing communications directed at the Russian authorities,
enhancing the visibility of the judgment-implementation process,
and maintaining close supervisory review of the cases concerned.
Such measures are highly welcome and are important. They will preserve international
attention and ensure that the judgments remain on the institutional
and historical record. However, it is very unlikely that they will
bring about implementation in the short to medium term.
16. In the long term, we can hope that full implementation of
the judgments might be achieved if there is a profound political
change in Russia, accompanied by an effort to rejoin the Council
of Europe. However, we cannot sit back and wait for such a solution.
The victims have already been waiting for far too long. We must pursue
novel measures to implement the judgments now, even if such implementation
can only be partial. These measures must be pragmatic enough to
be achievable in the difficult circumstances we face, whilst providing
an element of justice to the victims of appalling human rights abuses.
5 Overview
of just satisfaction due in judgments of the European Court of Human
Rights concerning the Russian Federation
17. At the time of writing, over
€3 billion is owed to applicants by the Russian Federation as just
satisfaction in final judgments of the Court (a total of € 3 392
651 958, including default interest). This includes € 424 044 029
relating to inter-State cases (of which there are three: € 13 533
397 for
Georgia v. Russia (I),
€ 154 548 612 for
Georgia v. Russia (II),
and € 255 962 020 for
Georgia v. Russia
(IV)). The amount due for individual cases is €2 968
607 929 (including default interest). A significant portion of this
arises from the “Yukos” case,
OAO Neftyanaya
Kompaniya Yukos v. Russia, which requires the payment
of €2 711 943 530.
Note
18. The amount of just satisfaction due will only continue to
grow. In September 2026 the Court issued a ruling striking out all
pending individual applications against Russia that concern matters
occurring within the country’s internationally recognised borders.
Note Nevertheless, the Court will
continue to examine cases concerning Russia’s military actions against
neighbouring States (Georgia and Ukraine), Russia’s exercise of control
over territories outside its internationally recognised borders,
and measures affecting the human rights of persons in those areas.
There are approximately 5 700 such applications pending, around
150 of which concern Georgia.
Note
19. The Court has begun to deliver judgments relating to Russia’s
aggression against Ukraine, although the amount of just satisfaction
due as a result of the violations has yet to be decided. The first
such judgment was delivered in June 2024.
Ukraine
v. Russia (re Crimea) is an inter-State case mainly concerning
violations in Crimea between 2014 and 16 September 2022.
Note The second
judgment is
Ukraine and the Netherlands v. Russia,
which concerns multiple, flagrant, and unprecedented violations
of the Convention in Ukraine resulting from the downing of flight MH17,
the actions of the Russian authorities in territories of Ukraine occupied
and/or under the effective control of Russian forces and their proxies
(in eastern Ukraine) since 2014, and the full-scale invasion beginning
on 24 February 2022. When reserving the issue of just satisfaction
for a future date, the Court noted that any future award made in
respect of the Ukrainian Government must have due regard to the
establishment of the Register of Damage and the ongoing discussions
concerning a future compensation mechanism.
Note
20. In January 2025 the Committee of Legal Advisers on Public
International Law (CAHDI) provided the Committee of Ministers with
a report, “Indicative overview of possible avenues consistent with
international law aimed at securing the payment by the Russian Federation
of just satisfaction awarded by the European Court of Human Rights”.
Note
21. This issue has also been the subject of considerable public
debate in academic publications, international law blogs, and institutional
reporting.
Note The Sub-Committee on the implementation
of judgments of the European Court of Human Rights also benefited
from presentations by Professor Veronika Fikfak and Mr Achilleas
Demetriades on this subject during a meeting held in Tirana on 5 July 2024.
On 23 June 2026, the Committee on Legal Affairs and Human Rights
also conducted a hearing with Frédéric Dolt, Head of the Council
of Europe’s Department for the Execution of Judgments of the European
Court of Human Rights, as well as Grigory Vaypan, Senior Lawyer
at Memorial. During the preparation of my report, I also had the
benefit of meetings with the permanent representations of France,
the Netherlands, and the United Kingdom to the Council of Europe;
Mr Epaminontas Triantafilou and Ms Julianne Hughes-Jennett, partners
of Quinn Emanuel Urquhart & Sullivan, representing Ukraine before
the European Court of Human Rights; Aarif Abraham, Co-Counsel to
the Ukrainian Ministry of Foreign Affairs on the Special Tribunal
for the Crime of Aggression against Ukraine; and Natalia Kubesch,
Director and Legal Advisor at REDRESS. In these publications and
discussions, a number of innovative proposals have been made for
mechanisms through which the payment of just satisfaction could
be secured. The three main proposals are set out in section 7. They
all involve legal, political and financial novelty and challenge,
which are further discussed in section 8; however they are measures
that are, in my view, available to the Council of Europe which are
now necessitated by the circumstances I have set out above.
6 Assets
which could be used to pay the just satisfaction due
22. The main assets which could
be available are frozen Russian Central Bank assets (“RCB assets”). Following
the full-scale invasion of Ukraine, Western countries immobilised
around €260 billion of RCB assets, of which €210 billion are currently
held within the European Union.
NoteNote Subsequently, an agreement was reached
among G7 countries to use the profits returned on these assets and
transfer them to Ukraine (but not the principal).
Note A significant proportion of the immobilised
assets are held by Euroclear in Belgium (around €190 billion), with
additional assets held in jurisdictions such as the United Kingdom
and France. There have been extensive discussions by the European
Union and its member States about financial structures which could
be created that would allow a significant proportion of the principal
RCB assets to be provided to Ukraine. At the time of writing, these
discussions have not yet resulted in any concrete plans. In order
to address Ukraine’s funding needs for 2026 and 2027, the European
Union supported the country with a loan of €90 billion, supported
through EU borrowing on the capital markets
Note (there have also been significant
previous contributions from the EU and other States).
23. In addition to State assets, there are also a wide variety
of Russian State-owned assets used for commercial purposes, whose
location, value and legal protection are difficult to establish.
Many may also be subject to seizure for commercial claims. This
report therefore focuses on frozen Russian State assets.
7 Possible
mechanisms for securing the payment of the just satisfaction due
7.1 Enforcement
in national courts outside the Russian Federation
24. As set out above, the Russian
Federation has blocked the enforcement of the Courts’ rulings in
its national courts. However, it might be possible for litigants
to apply to the national court of another State which hosts Russian
assets in order to obtain enforcement of the judgment there. This
could hypothetically be achieved against Russian State assets (such
as Central Bank assets), assets owned by its sovereign wealth fund,
or possibly other Russian State-owned commercial assets. In order
for such enforcement to succeed in practice, judgments of the European
Court of Human Rights would need to be: treated by national-level
courts as final domestic judgments which may be enforced under national
legal frameworks; dealt with specifically as enforceable judgments
of an international court; or made to be specifically enforceable
under national law as a result of ad
hoc legislation. The feasibility of such routes will
vary from State to State, depending on the national legal framework
in place.
25. Regardless of the State concerned, any attempt to enforce
payment through a judicial process would encounter opposition based
on the principle of State immunity, and on the provisions of the
Convention itself. These points are examined further below.
7.2 Establishment
of an ad hoc funding mechanism
26. A form of funding mechanism
could be created under the aegis of the Council of Europe. This
fund would be composed of Russian Federation assets repurposed by
States. This mechanism could administer the assets centrally, so
that they can then be disbursed to applicants. Such a mechanism
could take the form of a Council of Europe trust fund, or a Partial
Agreement composed of those States that are willing to take part
(by transferring the Russian assets within their jurisdiction to
the fund).
7.3 A
mechanism specific to judgments concerning Ukraine
27. A third proposal concerns specifically
judgments of the Court which relate to the actions of the Russian Federation
in Ukraine. For example, it might be possible to explore whether
the future Claims Commission for Ukraine and compensation fund could
cover the payment of just satisfaction awarded by the Court in relevant judgments
concerning Ukraine. The Convention Establishing an International
Claims Commission for Ukraine stipulates that the Commission shall
in their decision-making, “[t]ake into account, as appropriate,
relevant judgments or awards by courts or tribunals and other adjudicative
bodies established under international law.” It also stipulates
that the Commission shall take appropriate measures to ensure that
no claimant receives double compensation for the same damage, loss,
or injury.
Note The difficulty with the future Claims Commission is
that its jurisdiction will be limited to internationally wrongful
acts committed by Russia on or after 24 February 2022. However,
the Convention on the Claims Commission could be amended so as to
extend its temporal scope back to 20 February 2014, and the Assembly
has already invited States Parties to consider doing so in the future.
Note
28. Alternatively, a bespoke ad hoc funding
mechanism could be created specifically for Ukrainian judgments,
under the aegis of the Council of Europe. The justification for
the disbursement of seized assets to Ukraine could be that they
are provided to Ukraine until such time as the Russian Federation
meets its obligations to pay that same value in compensation/just
satisfaction (of course this could be done by accepting that the
amount transferred offsets the amount owed).
8 Challenges
with the possible mechanisms for securing the payment of just satisfaction
8.1 State
Immunity
29. This is the most important
obstacle. The description of the issue below is introductory in
nature and is not intended to be comprehensive.
30. Under customary international law, the principle of State
immunity protects the property of a State from the jurisdiction
of another State’s courts. The principle has two dimensions. Jurisdictional
immunity prevents a national court from adjudicating on the property
of another State. Immunity from execution protects a State’s property
from any order and injunction that might otherwise be created or
enforced, which would affect the use of the property in question.
The principles governing jurisdictional immunity and immunity from
execution are separate and distinct. Therefore, any judicial assessment
of an attempt to assume control of another State’s property would
involve both types of immunity, with immunity from execution immunity
granting States more robust protection.
Note
31. Any attempt by a litigant to enforce a judgment of the European
Court of Human Rights against assets of the Russian Central Bank
in another State would be likely to lead to objections based on
both jurisdictional and immunity from execution. Some legal scholars
and practitioners consider that it might already be possible to
overcome such objections, in the particular context of judgments
of the Court concerning the Russian Federation, based on the laws
of certain jurisdictions and the particularities of the situation.
Most notably, this could occur by recognising that Russia has waived
its immunity by its agreement to be bound by an international court’s
judgments. Waiver is a recognised exception to State immunity under
customary international law; the issue is whether and how it would
apply in this context. It may therefore already be possible for
an applicant to enforce their ECHR judgment against Russia in another
jurisdiction. However, there continues to be considerable legal
uncertainty surrounding this option.
32. Various proposals have been made in this regard. First, some
have suggested that action by the executive rather than the judiciary
could bypass any consideration of State immunity. This argument
relies on the idea that State immunity applies only to judicial
actions, rather than those of a government. Following this proposal,
a government(s) could transfer Russian assets (in this case to a
particular claimant or to an
ad hoc Council
of Europe fund), whilst avoiding any domestic judicial involvement.
The legality (and practicality) of such actions is a matter of debate.
Note
33. Second, some have proposed the adoption of legislation at
the national level, which would require the national courts to lift
State immunity in the particular case before it, on the basis that
there existed a judgment of an international court which would not
otherwise be complied with. Such legislation would develop a specific exception
to State immunity based on these unusual circumstances. There are
already examples of national jurisprudence or legislation which
facilitate the freezing and/or confiscation of foreign State assets
as a response to serious human rights violations or wars of aggression.
Note
34. However, even if a legal path could be made/enhanced through
new legislation or action by the authorities, governments and parliaments
might be reluctant to take the relevant steps in practice, for fear
of scaring other asset-holders from their jurisdiction or for fear
to being held responsible for the value of the assets transferred.
In the worst-case scenario, the financial and economic consequences
of this could be very significant. There is considerable disagreement
as to whether such concerns are legitimate and whether they should
outweigh other considerations. In any case, it is undoubtable that
such concerns are taken seriously by many States that hold Russian
assets.
Note
35. As concerns judgments concerning the Russian war of aggression
against Ukraine, it is possible that the doctrine of countermeasures
for internationally wrongful acts could be invoked in order to bypass
the question of State immunity. The Parliamentary Assembly has repeatedly
asserted the legality of applying the countermeasures doctrine in
order to repurpose RCB assets and provide them to Ukraine more generally
(for example, in
Resolution 2605 (2025)). Scholars, including an expert panel of the International
Institute for Strategic Studies, have opined that repurposing of
assets based on the countermeasures doctrine would be lawful, although
others conclude that it would be vulnerable to a legal challenge
(notably the Dutch Advisory Committee on Public International Law).
Note It is worth noting that some European
governments are uncertain as to whether the application of countermeasures
to RCB assets in general would ultimately be deemed legal by an
arbitration panel or the International Court of Justice. If it were
deemed illegal, this might ultimately make the State liable for
the sums of RCB assets it has diverted to Ukraine. The fact that
Russia does not currently recognise the compulsory jurisdiction
of the ICJ by virtue of a declaration under Article 36(2) of the
ICJ Statute (the Optional Clause) means that it would be challenging
(though perhaps not impossible) for it to bring an ICJ claim related
to the assets.
Note However,
as I explain below at paragraphs 49-51, I consider there is a cogent basis
on which a member State may lawfully apply the countermeasures doctrine
to enforce ECHR just satisfaction awards against Russia in the context
of its war of aggression against Ukraine.
8.2 Provisions
of the European Convention on Human Rights and Article 46
36. The role of the Committee of
Ministers in the execution of judgments is set out in Article 46
of the Convention. Article 46(2) provides that final judgments of
the Court shall be transmitted to the Committee of Ministers, “which
shall supervise their execution”. Article 46 sets out a process
by which the Committee of Ministers “may” refer a respondent State
to the Court for determination of whether it is breach of the obligation in
subsection 1 to respect the binding nature of judgments. Where the
respondent State is in breach, the Committee of Ministers is empowered
to decide what steps should be taken under Article 46(5).
37. Article 46 does not on its face indicate that States other
than the respondent State have a role in ensuring judgment implementation,
outside of their supervisory actions from within the Committee of
Ministers. Equally, the text of the Convention does not expressly
preclude external enforcement either. Underpinning the text of Article
46 is a presumption of a co-operative approach from States. It does
not envision a situation where a State is no longer a Party to the
Convention and refuses to implement the Court’s judgments that are
binding for that State. The Convention system was conceived as a
mechanism of collective enforcement of human rights obligations,
a feature repeatedly recognised by the Court itself.
Note
38. In my opinion, the correct view is that Article 46, properly
interpreted, does not preclude member States from taking steps at
a domestic level to enforce ECHR just satisfaction awards against
other States – particularly non-member States. However, I recognise
that this issue requires further exploration.
Note In
this regard it is noteworthy that, in February 2024 a single judge
of the Court of Appeal of Lithuania dismissed an application brought
by three Russian nationals residing in Lithuania, who had requested
judgments of the European Court of Human Rights to be recognised
and enforced. In a brief ruling, the judge dismissed the application
as inadmissible, finding that the Civil Procedure Code of the Republic
of Lithuania could not be interpreted so as to give the courts of
Lithuania jurisdiction to allow the recognition and enforcement
of European Court of Human Rights judgments against another State.
The Court noted that supervision of the enforcement of such judgments
is entrusted to the Committee of Ministers under Article 46 of the
Convention.
Note
39. To my knowledge, these are the only legal proceedings outside
of Russia where an applicant has attempted to enforce a judgment
of the European Court of Human Rights against the Russian Federation.
The brief reasoning of the Lithuanian courts far from settles this
procedural issue. It is for this reason that I make the proposal
at paragraph 56 below.
8.3 Feasibility
of international litigation for applicants
40. This is something which has
not yet been widely discussed in the legal literature, but which
nevertheless does cause me great concern. Many of the applicants
are poor and may live in countries which are far from those which
host meaningful amounts of Russian assets. They would face considerable
barriers in securing payment of just satisfaction through litigation
in a national court. In addition, there is the question of whether
it is reasonable to expect such victims to launch litigation in
order to obtain something which should already have been provided
to them, perhaps 20 years after the events in question.
8.4 “Opportunity
cost’”of using Russian State assets for the payment of just satisfaction awarded
by the Court
41. The assets of the Russian State
which are located outside of Russia are not unlimited. At the time
of writing, it is not clear whether a large proportion of such assets
may ultimately be used to support the defence of Ukraine, as war
reparations for the Ukrainian Government, or to enforce the awards
made by the future Claims Commission for Ukraine. If assets are
used for the payment of just satisfaction awarded by the Court in
Russian cases, they may no longer be available for those other purposes.
9 Proposals
for securing the payment of just satisfaction due
42. During the preparation of this
report, I have aimed to ensure that the solutions I ultimately propose
are sufficiently practical to ensure that they stand a reasonable
chance of being implemented. For that reason, the legal, political,
and financial issues raised above must be taken seriously. Given
this legal and political situation, if the Parliamentary Assembly
were to propose that European States take the necessary collective
steps to repurpose frozen Russian assets for the payment of just
satisfaction awarded in all judgments against the Russian Federation,
the reality is that the Committee of Ministers (and States as a
whole) would be unlikely to pursue this option further. As a result,
the solutions that I propose must necessarily be limited by the
practical realities.
43. Given the situation set out above, the preliminary draft resolution
and recommendation set out proposals to promote the payment of the
just satisfaction owed. These measures can be explored and pursued simultaneously.
9.1 Action
to ensure the payment of just satisfaction specifically for judgments
relating to the war of aggression against Ukraine
44. The Assembly should propose
that a funding mechanism be established, in order to facilitate
the payment of just satisfaction to be awarded by the European Court
of Human Rights in inter-State cases brought by Ukraine against
the Russian Federation concerning its war of aggression. Furthermore,
the Assembly should propose that participating States take any legal
and/or practical measures they consider appropriate to repurpose
assets of the Russian State, so that they may be transferred to
the funding mechanism.
45. This mechanism could be a separate
ad
hoc entity; or it could form part of a future compensation
fund mandated to pay compensation for damage, loss, or injury caused
by the Russian Federation’s internationally wrongful acts in or
against Ukraine.
Note If it were to take the form of an
ad hoc entity, possible forms that
the mechanism could take include the following:
- an escrow account, whereby the
Committee of Ministers authorises the Council of Europe to act as
a fiduciary, in order to receive and hold the funds – and then release
them when the right conditions are met;
- a trust fund, with a governing body, administered by an
assembly of contributors and staffed by the secretariat of the Council
of Europe, which would collect together the relevant assets only
for the purpose of disbursing them;
- a partial agreement, with a separate governing body and
budget, opened to States prepared to seize and repurpose Russian
assets.Note
46. There are two reasons why a fund specifically for Ukraine
is an appropriate, legal, and pragmatic route to ensuring the payment
of at least some of the just satisfaction owed by the Russian Federation.
9.1.1 The
range of legal justifications for repurposing assets for the payment
of just satisfaction relating to the war of aggression against Ukraine
47. There are a wide range of legal
justifications available to States, which are capable of justifying
the repurposing of assets for the payment of just satisfaction specifically
relating to the war of aggression against Ukraine. Different States
might adopt different approaches, depending on their jurisdiction
and their understanding of the relevant legal principles. The point
here is that the legal justifications are stronger for repurposing
assets in order to ensure the payment of just satisfaction awarded
by the Court in inter-State cases brough by Ukraine concerning the
war of aggression.
48. Parliaments have the option of passing legislation which would
develop and/or create a legal basis for such repurposing to take
place. Such legislation could be tailored narrowly, so that it applies
only in the case of judgments concerning the war of aggression.
For example, such legislation could make it clear that State immunity
does not apply in the very specific circumstances of a former member
State of the Council of Europe refusing to pay the just satisfaction
owed in a European Court of Human Rights judgment, in cases where
the applicant State and its citizens have been subjected to an unprovoked
war of aggression.
49. In regard to Ukraine, there is also the doctrine of countermeasures
under international law. Although this issue has been dealt with
extensively by the Assembly already, I recall the basic principles
as follows. Countermeasures are a longstanding principle of international
law which was codified by the International Law Commission in its
draft ‘Articles on the Responsibility of States for Internationally
Wrongful Acts’ (2001) (“ARSIWA”).
Note These provide that an act of a State
which is not in conformity with an international obligation towards
another State is not to be considered wrongful if the act constitutes
a countermeasure in relation to a breach of international obligations.
Note Third States
that are not directly injured or specially affected by the original
breach of international obligations may invoke third-party countermeasures,
including in circumstances where the obligation breached is owed
to the international community as a whole.
Note Countermeasures may only be
carried out in order to induce a State which is responsible for
an internationally wrongful act to comply with its obligations.
Note Complying with those obligations includes
“ceas[ing] the internationally wrongful conduct, if it is continuing,
and to provide reparation to the injured State”.
Note Countermeasures
must be proportionate, in that they must be commensurate with the
injury suffered, taking into account the gravity of the internationally wrongful
act and the rights in question.
Note They must also be temporary and reversible.
Note
50. Countermeasures can be applied to the current situation as
follows. The prohibition of aggression by one State against another
is an obligation
erga omnes and
a peremptory norm of general international law (
jus cogens). The Russian Federation’s
actions in Ukraine have been recognised by the United Nations General Assembly
as a violation of the United Nations Charter and an act of aggression,
constituting an internationally wrongful act engaging the Russian
Federation’s international responsibility. As a result, third States
not directly injured by the aggression are entitled to take countermeasures
against it. The Parliamentary Assembly has repeatedly concluded
that the repurposing of Russian State assets would constitute lawful
countermeasures under international law against the Russian Federation’s
aggression against Ukraine.
Note Such
repurposing would be intended to induce compliance by the Russian
Federation with its international legal obligations, including its
obligation to cease its aggression against Ukraine and make reparations.
Such countermeasures would be proportionate given the scale the
damage caused by the aggression. They would be temporary and reversible,
given than repurposed funds would be temporarily transferred pending
payment of the just satisfaction/compensation owed by Russia. Of
course, Russia could eventually pay the compensation by deciding
that the assets transferred as a countermeasure be definitively
applied to Ukraine’s reparation claim. Russia would then be credited
with any reparations actually paid by the mechanism, and its remaining obligation
would be correspondingly reduced.
51. I am strongly of the view that the principle of countermeasures
can lawfully be applied in the context of enforcing judgments of
the European Court of Human Rights concerning the war of aggression.
Repurposing with this aim would also be intended to induce compliance
by the Russian Federation with its international legal obligations,
including its obligation to cease the aggression and compensate
Ukraine for internationally wrongful acts, as established by an
international court. The repurposing would be proportionate, as
the calculation of just satisfaction awards made by the Court can
necessarily not exceed the amount of damage suffered by Ukraine
and its people. It would also be temporary and reversible, given
that the amount which would be repurposed could necessarily be deducted
from the total overall sum owed by the Russian Federation in unpaid
just satisfaction, or in other terms, the measure would cease when
the Russian Federation has paid the just satisfaction owed.
Note
9.1.2 The
potential for greater political support
52. The creation of a fund specifically
for Ukraine is more likely to receive the political support necessary
for it to be achievable in practice.
53. Whilst there is a lack of consensus for repurposing Russian
assets for the payment of just satisfaction owed by the Russian
Federation in general, there is more likely to be sufficient political
support for repurposing assets specifically for the payment of sums
which will be owed to Ukraine, given that these can fall within
the countermeasures justification and the transfer can be temporary
pending the payment of just satisfaction. The assets would be transferred
to and made available through a funding mechanism, with appropriate arrangements
for reversibility and for crediting any payments against the Russian
Federation’s outstanding liability. European popular opinion as
a whole is supportive of Ukraine’s defence of its sovereignty and
territorial integrity against the Russian aggression. There is also
growing political support among European States for the repurposing
of Russian assets, providing this can be done in compliance with
international law. Whilst it is true that certain States have expressed
strong reservations about the repurposing of Russian Central Bank assets,
it is unclear whether those reservations would be maintained if
the proposal would be for the assets to be repurposed specifically
for the payment of an ECHR award(s) concerning Ukraine, and especially
if this could be a countermeasure pending payment of just satisfaction
by the Russian Federation. Repurposing for this might be more attractive
in legal, political, and reputational terms than the repurposing
of Russian assets in general. In particular, States might conclude
that the enforcement of an ECHR judgment will be less concerning
to other foreign investors, compared to the repurposing of Russian
Central Bank assets in the absence of an international court judgment.
9.2 Action
to ensure the payment of just satisfaction owed by the Russian Federation
as a whole
54. Although the measures set out
above may be available specifically in relation to cases brought
by Ukraine, it is important to recall that the vast majority of
judgments of the Court pending implementation were brought by applicants
other than the Ukrainian State. Many of these cases involve egregious
violations of human rights. It is essential that something is also
done to assist applicants in these cases.
55. One option is to enhance such applicants’ prospects of enforcing
the Court’s awards in third countries outside Russia. Applicants
currently face a daunting task in bringing such litigation due to:
uncertainty about the location of enforceable assets; the legal
viability of enforcement; and the high cost of bringing risky claims abroad
to obtain just satisfaction already owed.
56. The Assembly cannot propose measures that would resolve all
of these issues. However, in my view, it can make three recommendations
that would enhance the legal position of the applicants. First,
it can request the Committee of Ministers to mandate a Council of
Europe inter-governmental body to carry out a comprehensive study
of the legal frameworks of Council of Europe member States, identifying
jurisdictions which permit domestic enforcement of just satisfaction
awards against the Russian Federation, as well as any changes that
would be necessary and legally feasible to facilitate such enforcement.
Second, building on this assessment, the Assembly can recommend
that the Committee of Ministers examine the feasibility of elaborating
a recommendation inviting member States to take the steps necessary
to ensure that their national legal frameworks allow for the domestic
enforcement of the European Court of Human Rights’ just satisfaction awards
against the Russian Federation, for as long as Russia refuses to
pay them. Third, the Assembly can request that member and observer
States, to the extent that is legally possible, ensure that their
national legal frameworks allow for the domestic enforcement of
the European Court of Human Rights’ just satisfaction awards against
the Russian Federation.
10 Sanctions
against named individuals and their potential individual criminal
responsibility
57. On 2 December 2025, the Sub-Committee
on the Implementation of Judgments of the European Court of Human
Rights heard proposals about the possible sanctioning of individuals
identifiable in judgments of the Court which concern the Russian
Federation. I am grateful to Rupert Skilbeck, Director of REDRESS,
and Toby Collis, lawyer at the European Human Rights Advocacy Centre,
for their contributions on this subject.
58. The judgments of the Court concerning the Russian Federation
are a record of repeated and outrageous violations of human dignity.
At the time of writing, there are over four thousand. In the vast
majority of these, the Court does not identify the individuals responsible
for serious human rights violations. However, on some rare occasions
it explicitly names the persons involved. The following cases are
notable examples:
- in Carter v. Russia, the Court named
Andrey Lugovoy and Dmitry Kovtun as responsible for the murder of
Russian dissident Aleksandr Litvinenko in London using a radioactive
substance;Note
- in Isayeva v. Russia,
the Court identified General Vladimir Shamanov and General Yakov
Nedobitko as having command responsibility over the indiscriminate
bombing of the town of Katyr-Yurt in Chechnya in February 2000.
The Court found that indiscriminate bombs with a 1km blast radius
had been used in a populated area,
outside of wartime, and without prior evacuation of civilians.Note
- in Bazorkina v. Russia,
the Court found that the Russian State had been responsible for
the enforced disappearance (and presumed
death) of Khadzhi-Murat Yandiyev. The judgment documents undisputed video
evidence of Colonel-General Alexander Baranov ordering soldiers
to “take him away, damn it, finish him off there … shoot him”.Note
59. In other judgments, the names of perpetrators are anonymised,
but the identity of the persons involved may be easily identifiable
from other sources. For example, in his evidence to the Sub-Committee
on the Implementation of Judgments of the European Court of Human
Rights, Mr Collis indicated that in multiple cases brought by the
European Human Rights Advocacy Centre against the Russian Federation,
where the Court’s judgment refers to identities of perpetrators
of serious human rights violations only with initials, the identity
of the persons involved may be easily ascertainable through the
examination of wider court documents and/or contextual evidence.
One example given was the case of
Lapunov
v. Russia, where the Court found that the applicant had
been abducted, detained, and tortured by State agents due to his
sexual orientation. The judgment refers to the agents involved only
by their initials – but their full identities may be straightforwardly confirmed
by the wider documentation available.
Note
60. Whilst the judgments referred to above relate to older human
rights abuses, it is worth noting that we may soon see judgments
from the Court about more recent gross human rights violations which
applicants allege to have been committed by the Russian State in
Ukraine. For example, in July 2026 the Court announced the communication
of applications of 111 Ukrainian nationals. The applicants claim
that they were held in a school basement in Yahidne village for
almost one month in March 2022, in such cramped and inhuman conditions
that eleven civilians died.
Note It is possible that the judgments
of the Court issued in cases such as this may identify the individuals
responsible for serious human rights violations, and especially
those with command responsibility.
61. At present, we lack the means to compel the Russian State
to take the appropriate legal actions to fully implement the Court’s
judgments, including, where required, the effective investigation
and prosecution of those responsible for the serious human rights
violations established by the Court. However, if we can hold some
individuals accountable, then we should. The draft Resolution calls
on member and observer States of the Council of Europe, as well
as the European Union and other relevant partners, to put such sanctions
in place; and the draft Recommendation calls on the Committee of
Ministers to ensure that the background technical work is carried
out to facilitate this.
62. Moreover, if such identifiable individuals have committed
serious human rights violations that would constitute, for example,
war crimes, crimes against humanity, or other crimes under international
criminal law, other States or international bodies could effectively
contribute to the implementation of the ‘individual measures’ required
by those judgements by investigating and prosecuting such crimes,
in cases where the Russian Federation is not willing to do so. This
could be the case, for example, were the International Criminal Court
(ICC) to investigate and prosecute alleged war crimes or crimes
against humanity in circumstances where it had jurisdiction. A member
State that has established universal jurisdiction for the prosecution
of the most serious crimes, or that has jurisdiction on any other
ground (e.g. passive personality), could also decide to initiate
a criminal investigation and prosecution for those crimes. Such
options could be pursued as part of the package of measures to ensure
the enforcement of these judgments where individuals are responsible
for serious human rights violations, and specifically crimes violating
Articles 2, 3 and 4 of the Convention.
Note This approach
is consistent with the Committee of Ministers’ decisions concerning
the execution of
Ukraine and the Netherlands
v. Russia judgment, where the Committee of Ministers
recalled that international co-operation is essential to secure
the execution of this judgment.
Note
11 Conclusions
63. Judgments of the European Court
of Human Rights provide applicants with the recognition by a respected
international court that their rights have been violated. Many applicants
may have faced years or even decades of the Russian authorities
insisting that there has been no problem and that they should stop complaining.
For many, a ruling of the Court will be the only official recognition
after a years-long struggle that they and/or their family has been
mistreated. This carries emotional weight. Rulings of the Court
are also important for the historical record, as the Russian regime’s
authoritarian practices and its war of aggression against Ukraine
must be documented if we are to have hope for a better and peaceful
future. This is indispensable to truth and accountability.
64. Yet the judgments should mean so much more than this. In order
for judgments of the Court to be implemented fully, the respondent
State must erase, as far as possible, the consequences of the violations
for the applicants (for example, through the payment of any just
satisfaction awarded by the Court, or through reopening of an investigation
into a human rights violation). The State must also undertake any
reforms of law and/or practice to prevent the recurrence of similar
violations.
65. We cannot hope to achieve all of these things from afar for
applicants who have successfully brought claims against the Russian
Federation. But we owe it to them to do what we can. This report
aims to identify measures that are practically achievable at the
present stage, in light of the legal and political circumstances we
face.
66. A summary of the proposals are as follows:
- Member and observer States should
take appropriate legal and/or practical measures to repurpose Russian
State assets within their jurisdiction so that, when the European
Court of Human Rights delivers judgment(s) awarding just satisfaction
in inter-State cases brought by Ukraine against the Russian Federation
relating to the war of aggression, those assets may be transferred
to a funding mechanism enabling the payment of the just satisfaction.
- They should also, where legally possible, enable domestic
enforcement of unpaid just satisfaction awards against Russia. Member
and observer States, as well as the European Union, are also urged
to impose targeted sanctions on the perpetrators of serious human
rights violations identified in unimplemented Court judgments.
- With regard to individual accountability, I also propose
that national authorities and the International Criminal Court investigate
and prosecute such individuals where appropriate.
- Finally, the Committee of Ministers is invited to take
the necessary measures to facilitate these proposals.
67. I hope that such measures might provide assistance to at least
some of the thousands of victims who are waiting for justice.
