The Supreme Court Has Issued an Opinion on the Judicial Immunity of the Russian Federation in the Case of Compensation for Damage Caused by the Aggressor State

"The court of Ukraine, considering a case where the Russian Federation is identified as the defendant, has the right to ignore the immunity of this country and consider cases on compensation for damage caused to an individual as a result of armed aggression of the Russian Federation, on a lawsuit filed against this foreign country"

The plaintiff, acting in her own interests and on behalf of young children, filed a lawsuit against Russia for compensation for moral damage caused to her and her children in connection with the death of her husband and father of her children as a result of the armed aggression of the Russian Federation on the territory of Ukraine.

The court of first instance dismissed the lawsuit. The court of appeal ruled on the decision to send to the Embassy of the Russian Federation a request for consent or opposition to the consideration by the Ukrainian court of the said civil case, a copy of the appeal and a ruling on the opening of appeal proceedings, and also halted the proceedings pending a response from the competent authority of a foreign state - the Russian Embassy in Ukraine.

Based on the results of the cassation review of the case, the Civil Cassation Court within the Supreme Court reached the following conclusions.

The Law of Ukraine On Private International Law establishes judicial immunity in respect of a foreign state in the absence of the consent of the competent authorities of the respective state to involve it in the case in the national court of another state.

At the same time, both the European Convention on State Immunity, adopted by the Council of Europe on 16 May 1972, and the UN Convention on the Jurisdictional Immunities of States and Their Property, adopted by UN General Assembly Resolution 59/38 on 2 December 2004, provide that a state may not invoke immunity in cases involving damage to health or life, if such damage is caused in whole or in part in the territory of the forum state and if the person who caused the damage was at that time in the territory of the forum state.

Ukraine is not a party to any of these conventions. However, they reflect a trend in the development of international law regarding the recognition of certain limits within which a foreign state is entitled to claim immunity in civil proceedings.

Since 2014, it is a well-known fact that the Russian Federation is committing armed aggression against Ukraine and continues to do so as of the moment of this decision.

According to the Resolution of the Verkhovna Rada of Ukraine of April 14, 2022, upon the statement of the Verkhovna Rada “On the commission of genocide by the Russian Federation in Ukraine”, the actions of the Armed Forces, the political and military leadership of Russia during the armed aggression against Ukraine that began on February 24, 2022, was recognized as the genocide of the Ukrainian people.

In determining whether the Russian Federation is subject to judicial immunity in a case under review, the Supreme Court took into account the following:

- the subject of the claim is compensation for moral damage caused to natural persons, citizens of Ukraine, as a result of the death of another citizen of Ukraine;

- the place of infliction of damage is the territory of a sovereign state - Ukraine;

- it is assumed that the damage was caused by Russian agents who violated the principles and objectives enshrined in the UN Charter on the prohibition of military aggression committed against another state - Ukraine;

- the commission of acts of armed aggression by a foreign state is not an exercise of its sovereign rights, but indicates a violation of the obligation to respect the sovereignty and territorial integrity of another state - Ukraine, which is enshrined in the UN Charter;

- the national legislation of Ukraine is guided by the fact that, as a general rule, damage caused in Ukraine to an individual as a result of the illegal actions of any other person (entity) can be compensated by a decision of the court of Ukraine (on the principle of general tort).

That is, the Supreme Court proceeds from the fact that in the case of a tort exception, any dispute that a citizen of Ukraine has on its territory, even with a foreign country, in particular the Russian Federation, can be considered and resolved by the court of Ukraine as a proper and competent court.

Thus, after the start of the war in Ukraine in 2014, the court of Ukraine, considering a case where the Russian Federation is identified as the defendant, has the right to ignore the immunity of this country and consider cases on compensation for damage caused to an individual as a result of armed aggression of the Russian Federation, on a lawsuit filed against this foreign country.

In addition, in connection with the full-scale invasion of the Russian Federation into the territory of Ukraine on February 24, 2022, Ukraine severed diplomatic relations with Russia, which makes it impossible from that date to send various requests and letters to the Russian Embassy in Ukraine, given the termination of its work on the territory of Ukraine.

The Supreme Court established grounds for concluding that, starting from 2014, there is no need to send requests to the Russian Embassy in Ukraine regarding the consent of the Russian Federation to be a defendant in cases on compensation for damage in connection with the commission of armed aggression by the Russian Federation against Ukraine and its disregard for sovereignty and territorial integrity of the Ukrainian state. And since February 24, 2022, such actions are also impossible, taking into account the termination of diplomatic relations between Ukraine and the Russian Federation.

The text of the Resolution of the Commercial Cassation Court within the Supreme Court of April 14, 2022, in case No. 308/9708/19 can be found at the following link - https://reyestr.court.gov.ua/Review/104086064.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - lpd.court.gov.ua/login.