Recovery from Ukraine of Compensation for Any Damage Is Possible Provided That the Court Has Established the Unlawfulness of the Act of Our State - Supreme Court Grand Chamber

In 2015, a woman died in the temporarily occupied territory of Ukraine in the Donetsk region. The exact circumstances of her death are not known. The cause of death was multiple explosive injuries to the body as a result of hostilities. In 2017 the son of the deceased filed a lawsuit against Ukraine for compensation for non-pecuniary damage caused by the death of his mother as a result of a terrorist act. He claimed that, given the very fact of such her death, Ukraine was obliged to compensate for the moral damage.

The key issues of the case were to establish whether the plaintiff's mother was under the jurisdiction of Ukraine within the meaning of Art. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and whether our state had violated certain of its obligations from those arising from the right to life. The courts of first and appellate instances did not resolve any of these issues. But they believed that it was Ukraine that was responsible for causing moral damage to the plaintiff. Therefore, the claim was partially granted, albeit to a lesser extent than the one requested by the plaintiff.

The courts found that the territory where the plaintiff's mother had died was temporarily occupied at the time. The Grand Chamber of the Supreme Court noted that Ukraine did not control this part of its territory to such an extent as to prevent the death of the plaintiff's mother, even if it could and should have done so. That is, our state did not exercise jurisdiction there at the time of the tragic event.

Even if we assume that at that time Ukraine could exercise elements of its power in certain territories of the village of Krasny Partizan (that is, if it had limited jurisdiction there), the plaintiff did not indicate or prove that our state was or should have been aware of the threats to his mother's life, as well as the fact that before her death the defendant could have taken, but did not take measures that would eliminate the risk for her life in the territory not controlled by the government of Ukraine. Therefore, under the circumstances of this case, there are no grounds for the responsibility of our state for the improper performance of the positive substantive obligation to guarantee the right to life.

The plaintiff did not allege that his mother’s death was due to a violation by Ukraine of a negative obligation to ensure the right to life (an obligation not to violate such a right). In addition, he had no arguments about the violation by the state of a positive procedural obligation to conduct an objective and effective investigation into the death of the mother.

In view of all this, the Grand Chamber of the Supreme Court overturned the courts' decisions and denied the claim.

The Grand Chamber of the Supreme Court reiterated its conclusion that, given the ECtHR’s case law of applying the category of legitimate expectations, Art. 19 of the Law of Ukraine On Combating Terrorism did not create such expectations of obtaining compensation from the state for damage caused by a terrorist act. Nor does Art. 1177 of the Civil Code of Ukraine give rise to legitimate expectations of obtaining this compensation (Resolution of September 4, 2019, in case No. 265/6582/16-ц).

The Grand Chamber of the Supreme Court found that the State did not bear property liability to the victims for all the crimes that remained unsolved. At the same time, it is possible to recover compensation from Ukraine for its violation of rights and freedoms under the Convention. However, only for the wrongful acts or omissions of Ukraine proper, that is, for failure to perform (improper performance) its negative and positive (substantive, procedural) obligations to guarantee the convention rights to everyone who is under the jurisdiction of our state.

The facts of the deaths themselves in the territory under the control of the government of Ukraine, that is, the one in which it exercises jurisdiction in the meaning of Article 1 of the Convention (in particular, within the state border during periods of the ATO, Joint Forces operations) do not automatically violate the guarantees of the right to life under Article 2 of the Convention. Moreover, it does not mean such an automatic violation and death of people on the territory that the state within its borders, for reasons independent of it, does not control (i.e., on the one on which it does not exercise jurisdiction in the sense of Article 1 of the Convention). Similarly, the facts of violation of public order, peace, destruction or damage to property within the borders of Ukraine (in particular, during the ATO, the Joint Forces operations), creation of a threat to human safety due to explosions, shelling, etc., including by persons who did not act as agents of this state, are not grounds for imposing liability on the state under the Convention.

In order to satisfy a claim for compensation by Ukraine for damage (property, moral) caused by terrorist acts during the period of the ATO, the Joint Forces operations, the courts must establish a violation by our state of its specific obligation under the Convention. And for this purpose they must find out: a) the grounds of the claim (circumstances on which the claim is substantiated); b) whether Ukraine had in the sense of Art. 1 of the Convention jurisdiction to guarantee the rights and freedoms in the territory in which, according to the plaintiff, the violation occurred; (c) if it had the jurisdiction, whether it has fulfilled its conventional obligations under such a guarantee in the relevant territory (if there has been a failure or improper performance of a specific obligation, what it was, what the consequences were and the causal link between them and non-performance or improper performance of the relevant duty); d) whether there is evidence of all these facts (appropriate, admissible, reliable and sufficient evidence).

If it is established that the state has violated its positive obligations to develop compensation mechanisms for unlawful interference with a certain right or to conduct an objective and effective investigation by an independent body of such unlawful interference, this compensation will be significantly less than for a violation by the state of a negative duty not to interfere unreasonably in the specified right of a person who was under state control.

The Resolution of the Grand Chamber of the Supreme Court of May 12, 2022, in case No. 635/6172/17 (proceedings No.14-167цс20): https://reyestr.court.gov.ua/Review/104728593.

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