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The court of first instance, whose decision was upheld by the court of appeal, closed the proceedings, taking into account that 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, including as a defendant.
The Supreme Court overturned previous decisions and remitted the case to the court of first instance for further consideration, providing the following legal reasoning.
Article 10 of the Civil Procedure Code of Ukraine determines that the court, when considering a case, is guided by the principle of the rule of law.
The Court applies the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols, as well as the case law of the European Court of Human Rights, as a source of law.
Reaching its judgment, the Supreme Court proceeded from the following main arguments.
According to part one, Article 2 of the Civil Procedure Code of Ukraine, the task of civil proceedings is fair, impartial and timely consideration and resolution of civil cases in order to effectively protect violated, unrecognized or disputed rights, freedoms or interests of individuals, rights and interests of legal entities, interests of the state.
Article 55 of the Constitution of Ukraine establishes the obligation of the state to ensure the protection of the human and citizen rights and freedoms by court (Article 55).
In accordance with paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
In accordance with the case law of the European Court of Human Rights, the restriction of the right to a fair trial, in particular through the application of judicial immunity of the state, corresponds to paragraph 1 of Article 6 of the Convention only if it: 1) pursues a legitimate aim; 2) is proportional to the goal pursued; 3) does not violate the very essence of the right of access to court.
The ECtHR has repeatedly recognized that granting immunity to a state in civil proceedings pursues the legitimate purpose of complying with international law to promote civility and good relations between states through respect for the sovereignty of another state.
Thus, the application of the Russian Federation’s judicial immunity in a claim for damages should have a legitimate purpose, in particular the promotion of comity and good relations between states through compliance with international law. At the same time, Russia’s armed aggression against Ukraine, carried out in violation of the fundamental principles and norms of international law, in particular the Charter of the United Nations, international legal crimes committed by its armed forces in Ukraine, precludes, at the initiative of the Russian Federation, comity and good relations between countries.
This deprives the application of the judicial immunity of the Russian Federation, which restricts the plaintiff's right to a fair trial, of a legitimate aim.
According to the case law of the ECtHR (relevant decisions are given), the restriction will be incompatible with paragraph 1 of Article 6 of the Convention if there is no reasonable proportion between the means used and the aim pursued. Also, when considering access to court in the context of the exercise of jurisdictional immunity by a state, it is necessary to ensure that the restrictions applied do not restrict or reduce the remaining person’s access in such a way or to such an extent that the very essence of the right is violated (access to tribunal).
It is common knowledge (does not require proof) that the Russian Federation rejects recognition of any responsibility for its illegal military activities in Ukraine. There is no reasonable ground to assume that the plaintiff's violated right could be protected by filing a claim with a Russian court.
Thus, the plaintiff’s recourse to the Ukrainian court is the only reasonably available remedy, the deprivation of which would amount to the deprivation of such a right altogether, that is, would negate the very essence of such a right.
Provisions of part 1 of Article 79 of the Law of Ukraine On Private International Law shall apply, unless otherwise provided by an international treaty of Ukraine or the law of Ukraine.
In accordance with the generally accepted and well-established case law of international judicial bodies, a state may be bound by the provisions of an international treaty even if it has not ratified such a treaty in case the provisions of such a treaty reflect customary international law.
As stated in the judgment of the ECtHR in the case of Oleynikov v. Russia, if the national courts uphold the jurisdictional immunity of the state without any analysis of the applicable principles of customary international law, such courts violate the applicant’s right to access to court even when jurisdictional immunity is applicable.
According to Article 12 of the UN Convention on Jurisdictional Immunities of States and Their Property (2004), which reflects customary international law, 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.
In view of the above, the Supreme Court concluded that this article was applicable under customary international law as a codified body of customary international law. Relevant decisions of the ECtHR are given.
This article reflects the grounds for limiting the judicial immunity of a foreign state due to physical harm to a person or damage to property, the so-called "tort exception".
The Supreme Court considers that in the issue of the application of state immunity from jurisdiction, the relevant norms cannot be interpreted abstractly or in isolation from the established factual circumstances of the case. Full consideration must be given to the specificities and circumstances of each case, as well as the underlying factors. In this case, we are talking about claims for damages for wrongful acts committed by the Russian Federation in the absence of alternative remedies for damages.
In accordance with part 1 of Article 11 of the Council of Europe Convention on the Prevention of Terrorism, Ukraine shall take such measures as may be necessary for the effective, proportionate and dissuasive punishment of terrorist offenses.
According to Article 13 of this Convention, Ukraine is obliged to take the necessary measures to protect and support the victims of terrorism carried out on the territory of Ukraine.
According to part 4 of Article 8 of the International Convention for the Suppression of the Financing of Terrorism, Ukraine is obliged to create mechanisms for compensating victims of crimes of terrorism. The absence of an appropriate mechanism may not constitute grounds for refusing to protect such a right by the general means provided for by law, including recourse to the courts.
Thus, the application of the Russian Federation’s judicial immunity and the refusal to consider the merits of the case would amount to a violation by Ukraine of its international legal obligations under the above-mentioned anti-terrorism conventions.
The concept of judicial immunity of a state is based on the international legal principle of the sovereign equality of states.
The Supreme Court drew attention to the fact that Russia's military aggression and occupation of the territories of Ukraine was not only a violation of the sovereignty and territorial integrity of Ukraine, but also a violation of the fundamental principles and norms of international law. In addition, such military aggression is accompanied by the crimes of genocide against Ukraine, as well as other war crimes of the armed forces and the top leadership of the Russian Federation.
Russia's actions went beyond its sovereign rights since any foreign state does not have the right to commit armed aggression against another country. 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.
Hence, the Russian Federation, having committed an unprovoked and full-scale act of armed aggression against the Ukrainian state, numerous acts of genocide of the Ukrainian people, is not entitled to further invoke its judicial immunity, thereby denying the jurisdiction of the courts of Ukraine to consider and resolve cases on compensation for damage caused by such acts to a citizen of Ukraine.
The Resolution of the Supreme Court of 18 May, 2022, in case No. 760/17232/20-ö (proceeding No. 61-15925ñâ21) can be found at the following link - https://reyestr.court.gov.ua/Review/104635312?fbclid=IwAR019XLYnBlrZ_evkY1ysERpk_NKSvxSXmiY8OdCDqeNjwxenvQbuCN_eAE.
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.
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